Opinion
No. 93-813.
April 13, 1994.
APPEAL FROM FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, STATE OF LOUISIANA, HONORABLE DOUGLAS J. NEHRBASS, J.
John Michael Artigue, for Sarah Winchell.
H. Ben Johnston II, for Johnson Properties, Inc., et al.
Jill Marie DeCourt, for Brown Walker Partnership.
Andre G. Coudrain, for Sterling Properties.
Plaintiff leased an apartment from defendant, Brown-Walker Partnership. She received a notice from Acadiana Treatment Systems, Inc., who furnished the water to the apartment complex, that the water contained a bacteria. She filed this suit against the defendant lessor for damages for an illness which she alleges was caused by the contaminated water. Plaintiff alleges the lessor's liability results from owning and leasing premises which were defective and unreasonably dangerous; owning property which had deteriorated to an unreasonably unsafe state; and allowing the water supply to become toxic, contaminated and unreasonably dangerous for use.
Defendants, the lessor and its leasing agent, filed motions for summary judgment on the basis that the water was manufactured and delivered to the apartment complex by Acadiana Treatment Systems, Inc., and that defendants had no knowledge that the water was contaminated until a notice was delivered to plaintiff. Affidavits submitted in support of the motion for summary judgment supported these facts. In opposition to the motion for summary judgment, plaintiff filed an affidavit that she leased the apartment for $225 per month from the lessor through its agent, and that the lessor furnished water and sewer services as part of the lease agreement. Plaintiff states that she paid no other persons for water services. The district judge granted the motion for summary judgment. In his reasons for ruling he states that Acadiana Treatment Systems, Inc. is the owner of the water distribution lines and the supplier of the water. The judge states that even if the lessor is considered the seller of the water, under the lease agreement by which the lessor agreed to furnish the water to the lessee, there is no liability on the part of the lessor in the absence of knowledge that the water was contaminated. The court concludes by stating that it knows of no theory under which plaintiff can prevail.
On appeal, plaintiff argues first that by accepting the monthly rental payments the lessor became a seller of the water, and is liable to plaintiff for any defects in the product which it sold. Essentially, this is the same argument which was correctly rejected by the district court. The documents filed in the record show that Acadiana Treatment Systems, Inc. owned the entire water distribution system and that it furnished the water to the entire apartment complex under a contract with the lessor. The lessor exercised no control over the quality or distribution of the water. Under our Louisiana Products Liability Act, R.S. 9:2800.54, a manufacturer of a product is liable for any damage caused by a characteristic which renders it unreasonably dangerous. R.S. 9:2800.53(1)(b) defines a manufacturer as including a seller who exercises control over the quality of the product. But a seller who exercises no control over the manufacture or quality of the product is not liable in the absence of knowledge of the dangerous characteristic. LSA-C.C. art. 2545; Reeves v. Great Atlantic Pac. Tea Co., Inc., 370 So.2d 202 (La.App. 3rd Cir. 1979), writs denied, 371 So.2d 835 (1979) and 372 So.2d 568 (1979).
Plaintiff argues next that under LSA-C.C. art. 2695, the lessor guarantees the lessee against all vices and defects of the thing leased. Under this article, plaintiff argues the premises were defective because of the contaminated water for which the lessor is strictly liable. The obvious answer to this argument is that the thing leased was not the water. The thing leased was the apartment. The contaminated water was furnished by a third party independent contractor through a piping system which the third party owned and maintained.
Next, plaintiff argues that the lessor is liable under LSA-C.C. art. 2322, which provides strict liability by the owner of a building for any damage occasioned by its ruin, either because of failure to repair it or because of a vice in its original construction. Here again, plaintiff argues that the water in the pipe was part of the building and that it was in a state of ruin because it was contaminated. No case is cited by plaintiff which extends Article 2322 this far. The jurisprudence generally has restricted this article to vices in the building or its appurtenances. See Cothern v. LaRocca, 255 La. 673, 232 So.2d 473 (La. 1970); and Charpentier v. St. Martin Parish School Board, 411 So.2d 717 (La.App. 3rd Cir. 1982).
Plaintiff next argues that we should extend Articles 2322, 2695 and 2693 to cover any products or services supplied to the leased premises by the lessor through a contract with an independent contractor. Of course, this is what happened in the present case. The lessor contracted with an independent contractor to furnish the water to the leased premises. No code article or jurisprudence supports such an argument. Such a rule would make the lessor responsible for any fault on the part of third party contractors who furnish services to lessees. There are many services furnished by lessors to leased premises through contracts with independent contractors. For instance: pest control, termite control, water, electricity, landscaping services, remodeling, painters, carpenters, and many others. Such furnishers of services and products are not employees or servants of the lessor for whom he is responsible under LSA-C.C. art. 2317, in the absence of a showing of control by the lessor over the manner in which the services are performed.
For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.
AFFIRMED.
COOKS, J., dissenting with written reasons.
Sarah Winchell filed suit against Brown-Walker Partnership, Stirling Properties Partnership (the owner's leasing agent and manager of the Sharlo Apartment Complex), as well as other defendants. The petition alleged Winchell sustained damages as a result of defendants' negligence and lack of care. Winchell asserted she had a right to recover damage under two legal theories: (1) strict liability; and (2) negligence. The trial court granted summary judgment in favor of defendants, Brown-Walker Partnership and Stirling Properties Partnership, finding the absence of any genuine issue of material fact and these defendants' were entitled to judgment as a matter of law. I disagree.
On or about June 12, 1990 Winchell leased an apartment situated at 130 Township Lane known as "Sharlo Apartments." On September 7, 1990, she was advised by Acadiana Treatment Systems, Inc. that the apartment complex's water supply was tested and found contaminated by high levels of coliform bacteria which exceeded the maximum contamination rate set forth in state and federal primary drinking water regulations. As a result of the contaminated water supplies, Winchell alleges she began suffering body lesions which resulted in permanent scarring. Her condition, as alleged, has been medically identified as cutaneous benign peri arthritis nedosa. In addition to the lesions which covered her entire lower extremities, Winchell alleges she also suffered from extreme fatigue, exhaustion, nausea and constant headaches directly attributable to the contaminated water supply. Specifically, Winchell alleges Brown-Walker Partnership's liability results from owning premises which were defective and unreasonably dangerous; owning property which had deteriorated to an unreasonably unsafe state; and allowing the water supply to become toxic, hazardous and unreasonably dangerous for every day use. In original and supplemental petitions, she alleges the owner and/or Stirling Properties Partnership, as managing agent, more particularly were liable under theories of strict liability and ordinary negligence for the acts and omissions listed below:
"A. In owning and/or controlling premises which are defective and unreasonably dangerous;
B. In owning and/or controlling property which has been allowed to deteriorate into a state of disrepair and unreasonableness;
C. In allowing the drinking water supply of plaintiff to become toxic; hazardous and/or unreasonably dangerous for consumption and everyday use;
D. In failing to take such measures so as to avoid contamination of the drinking water supply and to maintain a safe supply for plaintiff;
E. Failing to notify plaintiff of this hazardous condition and the dangers associated therewith in utilizing and consuming water from the contaminated supply.
F. Otherwise, failing to use due care and caution commensurate with the facts and circumstances then and there existing;
G. Violation of the statutes of the United States of America, State of Louisiana, as well as local ordinances, all of which are specifically pleaded herein as though recited hereto in extensio; and
H. Any and all acts of negligence, fault, carelessness and unskillfulness as may be established by a pre-trial discovery and/or shown during the trial of this matter."
Later responding, defendants filed Motions for Summary Judgment seeking dismissal of the suit. By answer and supporting affidavits, they denied any legal responsibility for the contaminated water supply attesting that the "water system" was entirely under the exclusive control and ownership of Acadiana Treatment System. Granting summary judgment, the trial judge concluded, "The affidavit submitted by Johnson Properties from Acadiana Treatment Systems establishes that Acadiana Treatment Systems is the owner of the water distribution lines and the sole owner and operator of the water supply and distribution system. . . . The affidavit submitted by mover established that the Brown Partnership was not involved in the manufacture or distribution of the water; and, therefore, it would not be liable for any defective condition of the water in the absence of knowledge." Winchell urges summary dismissal of the suit against these defendants was legally incorrect. I agree.
Summary judgment is a drastic remedy and should be granted only if the pleadings, depositions, and answer to interrogatories and omissions, together with affidavits (if any) show there is no genuine issue as to material fact; and, the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La. 1980). The party moving for summary judgment must affirmatively and clearly prove the absence of a genuine issue material fact. Any doubt must be resolved against summary judgment and in favor of a trial on the merits. Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Company, 427 So.2d 1152 (La. 1983); Durrosseau v. Century 21 Flavin Realty, 594 So.2d 1036 (La.App. 3d Cir. 1992); Morcos v. EMS, Inc., 570 So.2d 69 (La.App. 4th Cir. 1990).
It is well settled that an owner-lessor is held in strict liability for personal injuries sustained by his lessee as a result of defects in the lease premises. This liability attaches whether or not any specific fault on his part can be shown. Thus, neither his ignorance of the defect nor its latency will defeat an injured tenant's recovery. La.C.C. arts. 2322, 2693, and 2695; Smith v. Hartford Acc. and Indem. Co., 399 So.2d 1193 (La.App. 3d Cir. 1981), writ denied, 406 So.2d 604 (La. 1981); Anslem v. Travelers Insurance Co., 192 So.2d 599 (La.App. 3d Cir. 1966); Wexler v. Occhipinti, 378 So.2d 1073 (La.App. 4th Cir. 1979), writ denied, 381 So.2d 1232 (La. 1980). Only the fault of a third person, the fault of the victim, or an irresistible cause or force not usually foreseeable would absolve the owner from responsibility. The owner's obligation to keep his property free of vices or defects which may pose unreasonable risks of injury to occupants or visitors is non-delegable. Hunt v. City Stores, 387 So.2d 585 (La. 1980); Olson v. Shell Oil, 365 So.2d 1285 (La. 1978); Gaspard v. Pargas of Eunice, Inc., 527 So.2d 28 (La.App. 3d Cir. 1988); Brown v. Soupenne, 416 So.2d 170 (La.App. 4th Cir. 1982); Smith v. Hartford Accid. and Indem. Co., 399 So.2d 1193 (La.App. 3d Cir.), writ denied, 406 So.2d 604 (La. 1981). In order for the fault of a third person to exonerate the owner-lessor from his own obligation under strict liability, the third person's fault must be the sole cause of the damage. As expressed in Olson v. Shell Oil Co., 365 So.2d 1285 (La. 1978), "[T]he owner cannot by [contracting with another] limit his law-imposed liability to third persons for injuries arising from premise defects." See also Klein v. Young, 163 La. 59, 111 So. 495 (1927). The Louisiana Supreme Court clearly stated in Olson "[T]he fault of a third person, which exonerates a person from his own obligation importing strict liability as imposed by Articles 2317, 2321, and 2322 is that which is the sole cause of the damage, of the nature of an irresistible and unforeseeable occurrence i.e., where the damage resulting has no causal relationship whatsoever to the fault of the owner in failing to keep his building in repair, and where the 'third person' is a stranger rather than a person acting with the consent of the owner in the performance of the owner's non-delegable duty to keep his building in repair." (Emphasis added). Both the owner and contractor may be liable for their independent fault in causing a lessee's injury. Though the fault of the owner may be diminished by application of the principles of comparative negligence to the defenses of victim fault or third party fault in a strict liability suit, such fault may not be entirely absolved. See Clement v. Armoniet, 527 So.2d 1004 (La.App. 5th Cir. 1988); Womack v. Housing Aut. of New Orleans, 508 So.2d 936 (La.App. 4th Cir. 1987); Gallagher v. Favrot, 499 So.2d 1205 (La.App. 5th Cir. 1986), writ denied, 503 So.2d 23 (La. 1987).
Brown-Walker contends the pleadings and affidavits submitted undisputedly evidences that Acadiana Treatment System was the owner and operator of the water lines and solely responsible for its distribution to the apartment complex. It denies any involvement in the manufacture or distribution of the water; and, further denies having any prior knowledge of the contaminated water supply prior to institution of the present suit. Further, it attempts to escape liability as owner of the premises arguing that the water was not a defect in the premises; and the lessee's injury resulted from the fault of a third person. Stirling Properties, in memorandum, adopted the position of Brown-Walker Partnership and asserted it too was not liable for the contaminated condition of the water supply. Stirling Properties has not filed an answer or other response to appellant's appeal.
In addition to arguing that Brown-Walker Partnership and Stirling Properties Partnership were responsible as landlord-lessors of the apartment complex, appellant contends they also are liable as sellers of the water. Appellant alleges as part of the rental agreement Brown-Walker and Stirling Properties Partnership contracted to provide water and sewer services to her unit. Appellant states she was not advised of any contractual arrangement existing between the owner, leasing agent, and Acadiana Treatment System; and she did not execute any separate contract with Acadiana Treatment System to provide water and sewer services to her unit. As lessee, she was not required to make payments directly to Acadiana Treatment System; and she did not receive any itemization or other notification indicating that her leased unit was individually assessed monthly for such services. The service charges for the entire complex were paid monthly by the owner through its managing agent to Acadiana Treatment Systems. At the time the lease agreement was executed, appellant was not given any options to secure such services from an independent source.
Defendants contention that the contaminated water supply did not constitute a vice or defect "in the premises as originally constructed or which resulted from disrepair." La.C.C. art. 2322 reads:
"The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction."
The word "ruin" as used in this provision generally has been defined as having reference to the actual collapse or deterioration of the building or one of its components. See Davis v. Royal Globe Insurance Co., 257 La. 523, 242 So.2d 839 (1970). As noted in Davis, favorably quoting from Guidry v. Hamlin, 188 So. 662, 664 (La.App.Orl. 1939):
"The article was said to have 'no reference to any situation except that in which some part of the building collapses, or breaks, or gives way.' See Montgomery v. Cantelli, 174 So.2d 238 (La.App. 1965) . . . the English text of the Louisiana Code of 1808 translates ruin as 'falling down'. Comment 42 Tul.L.Rev. 178, 184 (1967). Article 2322 is considered a reiteration of the principle that the building must 'fall' expressed in Article 670 of the civil code, except that it permits recovery by third persons lawfully owning the premises, whereas 670 limits the owner's responsibility to neighbors and passers-by."
Although traditionally this article has been interpreted as holding the owner liable only for defects actually existing in the building, jurisprudentially it has been extended to "appurtenances" of the building or premises, as well. See Cothern v. LaRocca, 255 La. 673, 232 So.2d 473; Dunn v. Tedesco, 235 La. 679, 105 So.2d 264 [(1958)]. As reflected in a subsequent lease agreement executed between the parties, the landlord agreed to "have all heating, plumbing, electricity and air conditioning systems on the premises in good working order." While La.C.C. art. 2322 specifically refers to damage occasioned by the ruin of a building, it does not prevent an owner from assuming liability for other objects or things which may not be affixed to the building but which may enter it with the owner's permission or authorization. If the owner undertakes, as in this case, responsibility for the plumbing system, then he cannot deny his obligation to maintain such system in good working condition. Plumbing systems may include not only pipes but also the water, gas, or other substance which is designed to flow through it. We recognized when municipalities or other governing bodies undertake to provide such services they may bear full responsibility for damages occasioned by their failure to properly manage and exercise proper care in the distribution, quality, and disposal of utility products. See Chandler v. City of Shreveport, 169 La. 52, 124 So. 143 (1929); Urban Land Company v. City of Shreveport, 182 La. 978, 162 So. 747 (1935). More recently, the jurisprudence has held that such public providers are strictly liable under LSA-C.C.P. art. 667 for the harm occasioned by improper installation or delivery of utility services. Hamilton v. City of Shreveport, 180 So.2d 30 (La.App. 2d Cir. 1965), writ denied, 248 La. 700, 181 So.2d 399 (1966); Sharon v. Connecticut Fire Insurance Company, 270 So.2d 900 (La.App. 1st Cir. 1972), writ denied, 275 So.2d 788 (La. 1973); Lombard v. Sewer Water Board of New Orleans, 284 So.2d 905 (La. 1975); Carr v. City of Baton Rouge, 314 So.2d 527 (La.App. 1st Cir. 1975), writ denied, 318 So.2d 53, (La. 1975); and LaCroix v. Travelers Indemnity Company, 333 So.2d 724 (La.App. 2d Cir. 1976), writ denied, 338 So.2d 112 (La. 1976). This is so because landowners are often compelled to accept such services and are prevented by law from securing these services from an independent source. For example, see LSA-R.S. 33:4004. However, an owner who contracts with a private business to provide such services may not be similarly exempted from liability. In the latter case, the owner may bind himself for vices or defects present in the "thing," though supplied by an independent contractor, if he allows it to enter his premises; and, thereby allows it to become an integral part of the building's plumbing system. The owner may not escape total liability by placing blame entirely on the third party whom he contracted with to provide a necessary component of the plumbing system. Both the owner and the contractor may be judged responsible for the safe drinking condition of the building's water supply.
Further, a lessor who undertakes in the lease agreement to provide water or otherwise to maintain the plumbing system in good working order may contractually assume liability for the damages caused by consumption of contaminated water even if supplied by a third party. La.C.C. art. 2695 provides:
"The lessor guarantees the lessee against all the vices and defects of the things, which may prevent its being used even in case it should appear he knew nothing of the existence of such vice and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vice and defects, the lessor shall be bound to indemnify him for the same."
The lessor is further bound as provided by La.C.C. art. 2693:
"To make, during the continuance of the lease, all repairs which may accidently become necessary except those in which a tenant is specifically legally bound to make or otherwise assumed by covenant."
Appellee points out that this court would not find an owner-lessor liable for the damage occasioned by a power surge caused solely by the negligence of a company providing electrical services to the premises. Countering, appellant urges the water was an object of the lease; and, as such, the owner and leasing agent assumed responsibility for any vices or defect in the substance. She further argues to accept defendant's position would exonerate owners of buildings from liability because "almost in every instance they would be able to point the finger at a builder, contractor or material supplier." I find this argument persuasive. An owner-lessor who undertakes to provide water and sewer services in connection with a lease contract assumes legal responsibility for the thing allowed to enter the premises and intended for consumption by the lessee. Louisiana Civil Code Article 2718 places responsibility on the owner for the "cleaning of wells and necessaries" unless the contrary is stipulated in the lease contract. In this case, the lessee was powerless to seek water or sewer services from any other source than that selected by the landlord. Under the circumstances, I believe the trial court legally erred in granting summary judgment dismissing the suit against Brown-Walker Properties Partnership.
However, I am unable to determine (based on the record before us) whether the trial court properly dismissed Stirling Properties Partnership as a party to the suit. Appellant recites in brief and in the pleadings, at all material times, she made rental payments directly to Stirling Properties Partnership. Stirling Properties Partnership admits it agreed to serve as the owner's leasing agent and manager of the Sharlo Apartment complex. While Stirling Properties Partnership stated it was the successor to Management Plus, it denies managing the subject property at the time the lease was perfected by appellant. After examining the record, I am unable to determine whether Stirling Properties was the landlord's agent at the time of appellant's injury. There are two (2) leases in the record: one executed by appellant and Management Plus on June 8, 1990; and, the other executed by appellant and Stirling Properties dated February 7, 1990 which recites in the body it was to commence on February 1, 1991 and end on July 31, 1991. Appellant received notification of the water contamination on September 7, 1990; and, thereafter filed the present suit. Thus, I would remand the pending suit against Stirling Properties to determine the date it undertook responsibility as the leasing and management agent of the apartment complex. If Stirling Properties assumed such responsibility prior to the consumption of the contaminated water, then it too may be held legally responsible as the landlord's agent by contractually agreeing to act in its stead as owner and lessor of the premises.