Opinion
NO. 2012 CA 1839
2013-09-13
RUBY CHRISTOPHE v. NEW ROADS FIRE DEPARTMENT, THE CITY OF NEW ROADS, AND XYZ INSURANCE COMPANY
Roderick T. Morris New Roads, Louisiana Counsel for Plaintiff/Appellant Ruby Christophe John Wayne Jewell New Roads, Louisiana Counsel for Defendant/Appellee City of New Roads William C. Helm Baton Rouge, Louisiana
NOT DESIGNATED FOR PUBLICATION
Appealed from the
18th Judicial District Court
In and for the Parish of Point Coupee
State of Louisiana
Case No. 43980
The Honorable J. Robin Free, Judge Presiding
Roderick T. Morris
New Roads, Louisiana
Counsel for Plaintiff/Appellant
Ruby Christophe
John Wayne Jewell
New Roads, Louisiana
Counsel for Defendant/Appellee
City of New Roads
William C. Helm
Baton Rouge, Louisiana
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
THERIOT, J.
The Appellant, Ruby Christophe, a resident of the City of New Roads, seeks reversal of a summary judgment rendered in favor of the appellee, the City of New Roads ("the City"), by the Eighteenth Judicial District Court. For the following reasons, we amend the judgment, and as amended, we affirm.
FACTS AND PROCEDURAL HISTORY
On June 6, 2010, Ms. Christophe's home caught fire. Once she noticed the fire, Ms. Christophe immediately called who she referred to in her petition for damages as the "New Roads Fire Department." Shortly after the fire department arrived on the scene of the fire, Ms. Christophe's home became engulfed in flames. The fire department searched for a nearby fire hydrant, but none could be found in the immediate vicinity. As Ms. Christophe's house burned, the fire department searched for the nearest fire hydrant in the area. A hydrant was eventually found, some three hundred yards from Ms. Christophe's home. Once the fire department had found this hydrant, Ms. Christophe's house was destroyed, along with many of her possessions.
The correct name of the fire department referred to in the petition as the New Roads Fire Department is Fire Protection District Number 5 of Pointe Coupee Parish. For the purpose of this opinion, this entity shall be referred to as the "fire department."
Shortly after the fire, a new fire hydrant was installed in close proximity to her home by City employees, according to Ms. Christophe. She claimed in her original petition that the City was negligent for not installing a fire hydrant in close proximity to her home before it was destroyed by the fire, and that her house would not have sustained that level of damage if a hydrant had already been installed near her home. Ms. Christophe sued both the "New Roads Fire Department" and the City for damages.
Ms. Christophe's allegations against the New Roads Fire Department differ from her allegations against the City. She claimed the Fire department acted negligently in responding to and extinguishing the fire, while she claimed the City is negligent in its installation and maintenance of its fire hydrants. Since the motion for summary judgment at issue in this case was filed only by the City, the fire department is not an appellee in this matter.
In Ms. Christophe's amended petition for damages, she alleged that the fire hydrant that the fire department found was rusty and in such disrepair that the fire department had difficulty attaching its hoses to properly fight the fire. Due to the time that had elapsed, her home was destroyed by the fire.
In its answer, the City claimed that it had not had a duty to maintain fire hydrants within its limits since 1981, when the Pointe Coupee Police Jury created Fire Protection District Number 5. The City further stated that a "New Roads Fire Department" does not exist, and that the fire department that had the duty to both fight the fire that consumed Ms. Christophe's home and maintain the fire hydrants is a separate political subdivision of the State of Louisiana.
The City filed a motion for summary judgment, in which it claimed that since the City does not maintain its fire hydrants, there was no genuine issue of material fact in the case. The City submitted the Pointe Coupee Police Jury resolution of August 18, 1981 as an exhibit. Section 1 of the Resolution puts the city of New Roads within Fire Protection District Number 5. Sections 4 and 7 of the Resolution define Fire Protection District Number 5 as a political subdivision of the State of Louisiana under the state constitution, and lists additional duties as "maintenance and operation of buildings, machinery, equipment, water tanks, water hydrants and water lines."
Hearing on the motion for summary judgment was held on February 7, 2012. The district court granted the City's motion and dismissed Ms. Christophe's petition with prejudice. On March 13, 2012, the district court designated the summary judgment as a final appealable judgment, which this court affirmed on June 18, 2012. Ms. Christophe filed the instant appeal on July 16, 2012.
2012 CW 0627.
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ASSIGNMENT OF ERROR
Ms. Christophe avers that the trial court should have denied the City's summary judgment because although it claimed it was not responsible for the maintenance and placement of fire hydrants within the city limits, Ms. Christophe set forth material facts showing that City employees did install and maintain its fire hydrants. Therefore, there is a genuine issue of material fact as to whether the City is liable for the installation and maintenance of fire hydrants near Ms. Christophe's home, which is located within the city limits of New Roads.
STANDARD OF REVIEW
A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment should be granted. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Adams v. Arceneaux, 00-1440, p. 3-4 (La. App. 1 Cir. 6/22/01), 809 So.2d 190, 194.
DISCUSSION
In Ms. Christophe's petition for damages, paragraphs 6 through 10, she related the actions of the fire department, and how their negligence resulted in the destruction of her home. The City is never mentioned in those paragraphs. In paragraph 11, she alleged that City employees installed a fire hydrant near her home. In paragraph 13, she averred that the City was negligent in their duty to install and maintain its fire hydrants. She never explained in the petition how the City came to owe such a duty, only that the City was liable to her under Louisiana Civil Code art. 2315. Regardless of the theory of recovery asserted, there must be a showing of duty owed from the defendant to the plaintiff. See Stanley v. Wyeth, Inc., 07-2080, p. 6 (La. App. 1 Cir. 5/2/08), 991 So.2d 31, 34.
The 1981 Police Jury Resolution contained in the record provides clear evidence as to who is responsible for the installation and maintenance of fire hydrants in the City of New Roads:
SECTION 4. That the objects and purposes of Fire Protection [District] No. 5 hereby created, are to own, maintain and operate buildings, machinery and equipment, including both real and personal property, to be used in giving fire protection to the property in the District and promote the general health and well-being of citizens...
....
SECTION 7. The Fire Protection District No. 5 of the Parish of Pointe Coupee, Louisiana, hereby created, may, as a political subdivision of the State of Louisiana... for the purposes authorized by law including, for example, maintenance and operation of buildings, machinery, equipment, water tanks, water hydrants and water lines, vote and levy special maintenance taxes... (Emphasis added)
Although the term "water hydrants'" is not included in Section 4 of the resolution hut included in Section 7, it does not mean that Fire Protection District Number 5 is not responsible for the maintenance and operation of fire hydrants. Section 4 does state that Fire Protection District Number 5 is responsible for the maintenance and operation of all "machinery," of which fire hydrants can be logically included. The Resolution therefore shows that it is Fire Protection District Number 5, and not the City, who is responsible for the fire hydrants.
Ms. Christophe alleged in her petition and presented to the trial court evidence that City employees installed a new fire hydrant near her home shortly after the fire, and that this evidence shows that the City does bear some responsibility in the operation and maintenance of the fire hydrants. We disagree. While we do not dispute Ms. Christophe's allegation that City employees installed a fire hydrant, this fire hydrant played no part in the destruction of her home. It was the defective hydrant that gave the fire department difficulty with connecting hoses. Ms. Christophe stated in her amended petition that the defective hydrant appeared to be "rusty and in disrepair," and had probably been installed in that location many years before. According to the Resolution, it would be the duty of Fire Protection District Number 5 to maintain that hydrant.
As far as the City being responsible for the lack of a hydrant near Ms. Christophe's home at the time of the fire, Ms. Christophe has not presented any evidence which shows the City had an affirmative duty to install and maintain fire hydrants. She has not identified a duty that the City owes, constitutional, statutory, or otherwise, and has not shown how the City's breach of that duty was cause-in-fact of her sustained damages. See Adams v. Owens-Corning Fiberglas Corp., 04-1296, p. 11 (La. App. 1 Cir. 9/23/05), 921 So.2d 972, 981. The fact that she witnessed City employees installing a hydrant does not prove the duty to do so, and it cannot make the City retroactively responsible for the fire department's inability to fight the fire that destroyed her home.
At the hearing on the motion for summary judgment, Ms. Christophe could not present any evidence of the City's duty to install and maintain fire hydrants. Counsel for Ms. Christophe said she thought and believed the City was responsible, but nothing more. The City presented the Resolution which showed who was responsible for installing and maintaining the hydrants.
CONCLUSION
While Ms. Christophe claimed City employees installed a fire hydrant near her house after the fire, that allegation, taken as true, is not enough to show a genuine issue of material fact as to whether the City owed a duty to maintain and install all the fire hydrant within the city limits. Ms. Christophe was required to plead a duty owed by the City to her, and we find that no such duty exists. As the trial court judgment does not clearly state that the only party dismissed from the lawsuit is the City, we amend the judgment to reflect that the City of New Roads is dismissed from Ms. Christophe's petition with prejudice.
DECREE
The summary judgment in favor of the City of New Roads is affirmed. The petition for damages of the appellant, Ruby Christophe, is dismissed with prejudice as to the City of New Roads only. All costs for this appeal are assessed to Ms. Christophe.
AMENDED, AND AFFIRMED AS AMENDED.