Opinion
NUMBER 2012 CA 0747
01-08-2013
CHARDONNAY HOULETTE v. DANIELLE O'BERRY, HEATHER BLANCHARD, SADIE O'BERRY AND ABC INSURANCE COMPANY
Chardonnay Houlette Slidell, LA William M. Magee Zara Zeringue Suellen Richardson Covington, LA Pro Se -Appellant Plaintiff - Chardonnay Houlette Attorneys for Appellee Defendant - Sadie O'Berry
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany, Louisiana
Trial Court Number 2010-15514
Honorable Richard A. Swartz, Judge
Chardonnay Houlette
Slidell, LA
William M. Magee
Zara Zeringue
Suellen Richardson
Covington, LA
Pro Se -Appellant
Plaintiff - Chardonnay Houlette
Attorneys for Appellee
Defendant - Sadie O'Berry
BEFORE: PARRO, HUGHES, AND WELCH, JJ.
WELCH , J.
Plaintiff, Chardonnay Houlette, appeals a summary judgment granted in favor of defendant, Sadie O'Berry, dismissing her from this personal injury lawsuit with prejudice. We affirm.
BACKGROUND
On September 9, 2009, at approximately 9:58 p.m., Ms. Houlette and Danielle O'Berry were involved in a fight on property owned by Sadie O'Berry. Ms. Houlette had just dropped off Tylor Roach, her boyfriend, at his truck that had been parked at a trailer located on Sadie's property in St. Tammany Parish. Mr. Roach was Danielle's former boyfriend and the father of her children. Danielle was arrested following the fight and was charged with second degree battery.
On August 27, 2010, Ms. Houlette filed this lawsuit against Danielle, Heather Blanchard, an alleged assailant in the altercation, and Sadie. In her petition, she alleged that on the night in question, a vehicle driven by Heather Blanchard pulled behind her vehicle and prevented her from leaving. She claimed that Danielle and Ms. Blanchard violently attacked her while she was sitting in her car and continued beating her after removing her from the car. Ms. Houlette alleged that Sadie, the owner of the "trailer park" where the fight occurred, was liable because she was aware or should have been aware of the dangerous and volatile propensities of her niece, Danielle, and her accomplice, Ms. Blanchard, but nevertheless allowed them on her property. She further asserted that Sadie's inadequate screening and monitoring of her property, tenants, and visitors' backgrounds constituted deliberate indifference to her safety.
Sadie filed a motion for summary judgment in which she argued that Ms. Houlette had no evidence indicating that she was aware or should have been aware of the alleged dangerous propensities of Danielle and Ms. Blanchard and that Ms. Houlette failed to point to any statute, law, case, rule, or regulation that would render Sadie liable under contract, strict liability, or negligence principles. Sadie claimed that there was no genuine issue of material fact that any condition existed on the premises that would present a danger that would reasonably be expected to cause injury to a prudent person using ordinary care. She also argued that she owed no duty of care to protect Ms. Houlette against the criminal conduct of third-parties under Louisiana law because she had no knowledge, actual or imputed, that an alteration was going to occur. Lastly, Sadie submitted that her written lease contracts with the tenants residing on her property provided that she would not be liable for damages to any person on the premises and that any such liability for injuries of any type were to be assumed by the lessees.
In support of the motion for summary judgment, Sadie introduced her deposition and Danielle's deposition and a copy of a lease agreement she and one of her tenants had executed. In her deposition, Sadie testified she leases six trailers on the subject property that are also owned by her. She stated that she does not have any licenses from St. Tammany Parish to operate her property as a trailer park, but does get a sewer permit from the Parish each year. She acknowledged that there was no additional lighting in the area other than the outside lights on the trailers. Sadie testified that she does not reside on the subject property and she was not there when the altercation occurred.
In her deposition, Danielle, Sadie's niece, testified that her aunt had banned Mr. Roach from the parking lot because she knew of the "drama" between Danielle and Mr. Roach and did not want them to end up in a feud. She stated that she and Mr. Roach were having issues over the custody of their children and that there was tension between herself and Ms. Houlette before this incident. She claimed that two weeks before the incident, Ms. Houlette had threatened to beat her up and had driven by her home and harassed her. On the night in question, Danielle spoke with a resident of the trailer park, who told her that Mr. Roach's truck was parked there. Danielle denied going to the trailer park to confront Mr. Roach, insisting that she went there to visit her brother, who lives at the trailer park. She testified that after arriving at the trailer park, she went to ask a resident if she had seen her brother, then saw Mr. Roach's truck, Ms. Houlette sitting inside of her vehicle, and Mr. Roach standing outside between the vehicles. According to Danielle, she and Mr. Roach began to argue, Ms. Houlette got out of her car and came to his defense, and both Mr. Roach and Ms. Houlette attacked her. She acknowledged that she was arrested and charged with second degree battery and pled no contest.
In her memorandum in opposition to the motion for summary judgment, Ms. Houlette asserted that although Sadie may not have known that she and the other defendants were on her property when the attack occurred, Sadie's failure to abide by existing mobile home park regulations established by St. Tammany Parish contributed to a lack of security that created an environment conducive to the alteration that occurred. She claimed that because the mobile home park had six trailers rented to the general public, Sadie was obligated to comply with a regulation requiring the lighting of streets and walkways in mobile home parks. Ms. Houlette asserted that it is undisputed that there was no exterior lighting for streets and walkways and that the failure to provide such by Sadie was in direct violation of the governmental regulations and created an unsafe condition conducive to criminal activity, including attacks without warning, as occurred in this case. In opposition to the motion for summary judgment, Ms. Houlette submitted her affidavit, the depositions of Sadie and Danielle O'Berry, a copy of the "Parish Code of Ordinances for St. Tammany Parish Government" pertaining to mobile home parks, and a copy of a document entitled "Outdoor Lighting Regulations." Subsection 1 of Section 40-084.0 of the Parish Code of Ordinances defines a "[m]obile home park" to include a parcel of land containing four or more mobile home spaces available to the general public for lease or rent and "shall be regulated by subdivision regulations." Subsection 5 of those regulations provides that "[s]treets and walkways designed for the general use of mobile home park residents shall be lighted during the hours of darkness" and that "[s]uch lighting shall not be under the control of the mobile home occupant." Section 40:084.0(5)(4). Section 7.03 of the outdoor lighting regulations states that all public and private outdoor lighting installed in St. Tammany Parish shall be in conformance with the requirements set forth therein. In her affidavit, Ms. Houlette attested that the darkness of the parking lot contributed to the success of the battery inflicted upon her because her assailants were able to rapidly approach her without warning, leaving her almost no time to defend herself before the attack or to adequately retreat or escape.
At the hearing on the motion for summary judgment, Sadie's attorney argued that Sadie was not liable for the injuries sustained by Ms. Houlette based on the allegations of the petition because she had no knowledge that a criminal act would occur on the property. Sadie's attorney argued there was no allegation regarding lighting in the petition, and even if the trial court considered that allegation on the motion for summary judgment, the lighting condition of the trailer park was not a cause-in-fact of the harm. The trial court agreed and granted the motion for summary judgment, finding that the undisputed evidence showed that Sadie did not have actual or constructive knowledge that the altercation would occur and that the altercation was not foreseeable. Therefore, the court concluded, Sadie did not have a duty to take corrective action. The court found no merit to Ms. Houlette's claim regarding the lack of adequate lighting, finding that: (1) Ms. Houlette failed to produce any competent evidence to establish that the subject property met the general requirements of a "mobile home park" as defined in the St. Tammany Parish regulations; (2) in the absence of such evidence, there was no evidence establishing a breach of a duty to provide more lighting; and (3) there was no causal connection between the lighting conditions and the injuries sustained by Ms. Houlette.
This appeal, taken by Ms. Houlette, followed.
SUMMARY JUDGMENT
Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that 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(B); Washauer v. J.C. Penney Company, Inc., 2003-0642 (La. App. 1st Cir. 4/21/04), 879 So.2d 195, 197. Summary judgments are reviewed on appeal de novo. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.3d 730, 750. Appellate courts ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id. A "genuine issue" is a "triable issue." An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for trial on that issue. In determining whether issues are genuine, appellate courts may not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith, 639 So.2d at 751.
The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party's burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial. The failure to do so demonstrates that there is no genuine issue of material fact. Washauer, 879 So.2d at 197.
In this appeal, Ms. Houlette contends that material issues of fact remain as to whether the condition of the mobile home park presented an unreasonable risk of harm to her. She argues that the attack on her was reasonably foreseeable so as to give rise to a duty on Sadie's part to warn her of the danger or to take steps to prevent the attack on her. She points to Danielle's testimony that Sadie was aware of the danger that an altercation could take place between Mr. Roach and herself on Sadie's property. Ms. Houlette claims that Sadie should have known that Mr. Roach's truck was on her property and that Sadie should have the truck removed to eliminate the possibility of a conflict or the "feud" referred to by Danielle. She further asserts if lighting and other security measures required by St. Tammany Parish for running a mobile home park had been in place, it is more likely than not that she would have seen her assailants and would have been able to escape the attack since she was sitting in her vehicle before it occurred.
In order for liability to attach under the general negligence principles of Louisiana Civil Code article 2315, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of plaintiffs injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of the protection element); and (5) actual damages (the damage element). Fredericks v. Daiquiris & Creams of Mandeville, L.L.C., 2004-0567 (La. App. 1st Cir. 3/24/05), 906 So.2d 636, 639, writ denied, 2005-1047 (La. 6/17/05), 904 So.2d 706.
The law recognizes that a property owner has a general duty relative to the safety of persons on his premises to exercise reasonable care and not to expose such persons to unreasonable risks of injury or harm. Brown v. Ascension Parish, 2003-1279 (La. App. 1st Cir. 8/18/04), 887 So.2d 39, 42. However, this duty does not extend to the protection of persons on the premises from unforeseen or unanticipated criminal acts of third persons. Id. Determining whether a crime is foreseeable is a critical inquiry in the duty equation, because it is the forseeability of the crime on the defendant's property and the gravity of the risk that determine the existence and extent of the defendant's duty. Id.
Considering all of the evidence in support of and in opposition to the motion for summary judgment, we find that Ms, Houlette cannot establish liability on Sadie's part for the injuries she sustained as a result of a criminal battery inflicted upon her by a third person. There is no evidence to support a finding that Sadie exposed Ms. Houlette to an unreasonable risk of harm or that Sadie should have anticipated that her niece would criminally assault Ms. Houlette on her property. As a matter of law, we find that Sadie did not have a duty to provide security at the trailer park or to monitor the presence of her niece or Mr. Roach on the property. Furthermore, even if a Parish regulation pertaining to lighting was applicable to the property in question and Ms. Houlette's version of the events is accepted as true, there simply is no evidence to support a finding that the lighting conditions played any part in Danielle's assault on Ms. Houlette. Therefore, summary judgment was proper.
Ms. Houlette also contends that the trial court erred in granting summary judgment prematurely prior to the completion of discovery. She points out that there was an outstanding subpoena issued to Allstate Insurance Company on October 6, 2011, the alleged insurer of Sadie's property, when the hearing on the motion was held on December 29, 2011. We note that Ms. Houlette did not ask for a continuance prior to the hearing and did not object to the holding of the hearing without this evidence. Moreover, it is well settled that a trial court has discretion to entertain a motion for summary judgment before discovery has been completed. Daniels v. USAgencies Casualty Insurance Company, 2011-1357 (La. App. 1st Cir. 5/3/12), 92 So.3d 1049, 1054. We find no abuse of the trial court's discretion in proceeding with the motion for summary judgment based on the pleadings and evidence contained in the record.
CONCLUSION
For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiff, Chardonnay Houlette.
AFFIRMED.