Opinion
2017 CA 0965
03-09-2018
MONICA GREER v. SPORTSMAN'S HAIRADISE, LLC, BRITTANY DOMINGUEZ, JANE DOE AND RAILROAD SQUARE, LLC
Douglas D. Brown Walton Tate Hammond, Louisiana Counsel for Plaintiff-Appellant Monica Greer Theresa Ann Beckler Ponchatoula, Louisiana Counsel for Defendants-Appellees Sportsman's Hairadise, LLC and Brittany Dominguez Heather M. Nagel Matthew J. Garver Scott D. Brownell Michael R. Sistrunk Covington, Louisiana Counsel for Defendant-Appellee Railroad Square, LLC
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
NUMBER 2015-0002333, DIVISION "E", PARISH OF TANGIPAHOA
STATE OF LOUISIANA HONORABLE BRENDA BEDSOLE RICKS, JUDGE Douglas D. Brown
Walton Tate
Hammond, Louisiana Counsel for Plaintiff-Appellant
Monica Greer Theresa Ann Beckler
Ponchatoula, Louisiana Counsel for Defendants-Appellees
Sportsman's Hairadise, LLC and
Brittany Dominguez Heather M. Nagel
Matthew J. Garver
Scott D. Brownell
Michael R. Sistrunk
Covington, Louisiana Counsel for Defendant-Appellee
Railroad Square, LLC BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.
Disposition: REVERSED AND REMANDED.
CHUTZ, J.
Plaintiff-appellant, Monica Greer, appeals a summary judgment dismissing her personal injury claims against defendant-appellee, Railroad Square, LLC. We reverse and remand.
FACTS AND PROCEDURAL HISTORY
According to Ms. Greer's petition, she was a patron of Sportsman's Hairadise, which is located in Ponchatoula, Louisiana, on October 24, 2014. She alleged a salon employee directed her to park behind the building and enter through the rear door, which she did. As Ms. Greer walked toward the front of the building, she was required to negotiate a single step down to the level of the salon area. As she attempted to do so, she fell down to the concrete floor on the lower level, allegedly causing her to sustain "serious, permanent and debilitating injuries." The premises where the accident occurred were leased by Sportsman's Hairadise from Railroad Square, LLC, which owned the building.
Subsequently, Ms. Greer filed a damages suit naming Railroad Square as a defendant. She alleged the premises included a number of defects presenting an unreasonable risk of harm, including a "stepdown" from a greater height than permitted by the applicable building code, differing tactile surfaces presenting different gradients of friction, missing or uninstalled handrails, unmarked or insufficiently marked surface edges, and absent or insufficient warnings of the "stepdown." After answering the petition, Railroad Square later filed a motion for summary judgment seeking dismissal of Ms. Greer's claims. The grounds for the motion were: (1) Railroad Square did not have custody or garde of the premises where the accident occurred and; (2) under the lease agreement, Sportsman's Hairadise was responsible for maintaining the premises, including the floors, and contractually assumed legal responsibility for damages arising from the premises in accordance with La. R.S. 9:3221.
Several other defendants were also named, but they are not parties to this appeal.
Following a hearing, the district court granted the motion for summary judgment and dismissed Ms. Greer's claims against Railroad Square with prejudice. Ms. Greer now appeals, arguing in two assignments of error that the district court erred in not finding that Railroad Square shared garde of the premises and had actual knowledge of the premises defects, as well as in failing to grant a motion to continue she filed shortly before the hearing on the motion for summary judgment.
STANDARD OF REVIEW
On appeal, appellate courts review the grant or denial of a motion for summary judgment de novo under the same criteria governing the district court's consideration of whether summary judgment is appropriate. Schultz v. Guoth , 10-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06. A motion for summary judgment shall be granted only if the pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions admitted for purposes of the motion for summary judgment, show there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3) & (4); Apache Corporation v. Talen's Marine & Fuel , LLC , 2017-0714 (La. App. 1st Cir. 2/7/18), ___ So.3d ___, ___. A genuine issue is one as to which reasonable persons could disagree. All doubts should be resolved in the non-moving party's favor in determining whether an issue of material fact exists. Hines v. Garrett , 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam).
The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). But if the moving party will not bear the burden of proof at trial on the issue before the court on the motion, the moving party's burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party may not rest on the mere allegations or denials of his pleadings but must produce factual support sufficient to establish he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. arts. 966(D)(1) & 967(B); Schultz , 57 So.3d at 1006.
DISCUSSION
Ms. Greer contends neither of the grounds for summary judgment asserted by Railroad Square has merit. Specifically, she argues Railroad Square cannot be dismissed based on a lack of garde because the terms of the lease show it shared custody and garde of the premises with Sportsman's Hairadise. Additionally, she claims Railroad Square cannot escape liability under La. R.S. 9:3221 because it had actual knowledge of the defects that caused her injuries
Under Louisiana law, the owner/lessor of a building is generally liable for the condition of the leased premises. Wynn v. Luck , 47,314 (La. App. 2d Cir. 9/26/12), 106 So.3d 111, 113; Allstate Insurance Company v. Veninata , 06-1641 (La. App. 4th Cir. 11/7/07), 971 So.2d 420, 423, writ denied, 08-0067 (La. 3/7/08), 977 So.2d 918. See also La. C.C. arts. 660, 2317 & 2317.1, 2322, and 2696-97. Additionally, for purposes of La. C.C. art. 2317 liability, "ownership alone establishes the requisite benefit, control and authority to find garde" under most circumstances. Giorgio v. Alliance Operating Corporation , 05-0002 (La. 1/19/06), 921 So.2d 58, 73, quoting, Doughty v. Insured Lloyds Insurance Co., 576 So.2d 461, 464 (La. 1991). However, the presumption of garde that is created by ownership is rebuttable. Giorgio , 921 So.2d at 73. The concept of garde is broader than ownership, and more than one party may have garde of a thing. See Dupree v. City of New Orleans , 99-3651 (La. 8/31/00), 765 So.2d 1002, 1009. Whether the law imposes a duty of garde upon a party is a factual inquiry based upon the determination of: (1) what benefit the party received from the thing; and (2) what kind of direction and control the party had over it. Giorgio , 921 So.2d at 73; Doughty , 576 So.2d at 464.
Louisiana Civil Code article 2317 provides in part:
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.
The presumption that an owner has garde of a thing may be rebutted by establishing a contractual undertaking by another to maintain and control the property. See Ponder v. SDT Waste & Debris Services , L.L.C., 15-1656 (La. App. 1st Cir. 8/16/17) (unpublished); Rodrigue v. Baton Rouge River Center , 15-0703 (La. App. 1st Cir. 11/9/15) (unpublished); Davis v. Riverside Court Condominium Association Phase II , Inc., 14-0023 (La. App. 4th Cir. 11/12/14), 154 So.3d 643, 648. Under La. R.S. 9:3221, a lessee is allowed to assume responsibility for the condition of the premises in a lease agreement. Brown v. Connecticut General Life Insurance Company , 00-0229 (La. App. 4th Cir. 3/07/01), 793 So.2d 211, 213, writ denied, 01-2857 (La. 1/11/02), 807 So.2d 238. Louisiana Revised Statutes 9:3221 provides, in pertinent part:
[T]he owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time. [Emphasis added.]
In the present case, Railroad Square and Sportsman's Hairadise entered into a lease agreement in April 2013, which was in effect at the time of Ms. Greer's accident. The lease agreement provided:
6) DELIVERY OF PREMISES: Lessee hereby accepts the premises in their existing condition and assumes responsibility for the condition of the leased premises.
[Emphasis added.]
***
17) CONDITIONS AN[D] UPKEEP OF PREMISES: Lessee will at Lessee's sole expense keep and maintain in good repair the entire leased premises including without limitation interior walls, floors, ceilings, ducts, utilities, air conditioning, heating and lighting and plumbing and also any parking area exclusively used by Lessee. Lessor shall be responsible only to maintain the roof, foundation, and outside walls (not including the floors and doors). Lessor shall not be obligated to make any repair unless it is notified in writing by the Lessee of the need of such repair and shall not be liable for any damage, loss or consequence of defects about the building premises, unless it shall have failed to repair defects for which it is responsible within a reasonable time following written demand of Lessee to do so.
These lease provisions form the basis of Railroad Square's claim that it had no garde over the premises because it lacked direction and control over the salon's day-to-day operations. Railroad Square asserts "the lease and affidavit of [its corporate representative] Martha Ebrecht demonstrate that [Sportsman's] Hairadise assumed garde over the property such that Hairadise, and only Hairadise, owed a duty to plaintiff."
Under the lease terms, Sportsman's Hairadise clearly agreed to assume legal responsibility for the condition of the premises pursuant to La. R.S. 9:3221. Nevertheless, the extent to which responsibility may be transferred to a lessee is limited by the requirement that the owner-lessor neither knew nor should have known of the defects in the premises. See La. R.S. 9:3221. Thus, if Railroad Square actually knew or should have known about the alleged premises defects as Ms. Greer alleges, Sportsman's Hairadise's assumption of responsibility for the premises would be ineffective under La. R.S. 9:3221.
Because it would not bear the burden of proof at trial, Railroad Square was only required to point out a lack of factual support for the essential element of Ms. Greer's claim that Railroad Square knew or should have known of the alleged defects in the premises. La. C.C.P. 966(D)(1). Thus, this court must examine the documents filed in support and opposition to the summary judgment de novo to determine if a genuine issue of material fact exists regarding this issue.
In support of its motion for summary judgment, Railroad Square filed the affidavit of Ms. Ebrecht, which was based on her personal knowledge of Railroad Square's business affairs. She attested that Railroad Square had never received any complaints regarding the step and was unaware of any other falls occurring at that location. The affidavit did not mention whether Ms. Ebrecht was aware of the height of the step at the location of the accident, which Ms. Greer alleged violated applicable building codes, or of the differing tactile surfaces on the floor.
In her petition, Ms. Greer alleged each of these conditions constituted a defect presenting an unreasonable risk of harm. The question of whether a defect presents an unreasonable risk of harm is an issue of mixed fact and law that is peculiarly a question for the trier-of-fact. Cheramie v. Port Fourchon Marina , Inc , 16-0895 (La. App. 1st Cir. 2/17/17), 211 So.3d 1212, 1216, writ denied, 17-0499 (La. 5/12/17), 221 So.3d 73. In its motion for summary judgment, Railroad Square did not raise any issue regarding whether the premises defects alleged by Ms. Greer actually constituted defects or presented an unreasonable risk of harm. Therefore, for purposes of this summary judgment only, we must assume they did so since only those issues set forth in a motion for summary judgment will be considered by the court. See La. C.C.P. art. 966(F).
In her deposition, Ms. Ebrecht was shown photographs of the step and was questioned about the differing tactile surfaces. She identified what appeared to be a concrete surface in one area and carpet in another area. She testified Railroad Square did not install the carpet, stating, "I think the prior tenant put it there," although she later indicated it could have been Sportsman's Hairadise that installed it. Ms. Ebrecht also testified regarding the various uses of the premises by several prior tenants, indicating the building had been owned by Railroad Square for some period of time.
Construing any doubt in favor of the non-movant, we conclude Ms. Ebrecht's admission that the prior tenant may have installed the carpet raises a genuine issue of material fact concerning whether Railroad Square knew or should have known of the alleged defect regarding the differing tactile surfaces when it entered into the lease with Sportsman's Hairadise. Also, the fact that Railroad Square owned the building for some period of time, combined with the step's height, raises another issue of material fact as to whether Railroad Square knew or should have known of the alleged defect created by the step's height.
In view of the existence of these disputed issues of material fact, summary judgment was inappropriate in this case. The district court erred in granting Railroad Square's motion for summary judgment.
This conclusion renders Ms. Greer's assignment of error relating to the denial of her motion for continuance moot. --------
CONCLUSION
For these reasons, the judgment of the district court granting summary judgment in favor of Railroad Square and dismissing Ms. Greer's claims with prejudice is hereby reversed, and this matter is remanded to the district court for further proceedings consistent with this opinion. All appeal costs are to be paid by defendant-appellee, Railroad Square.
REVERSED AND REMANDED.