Joseph Trujillo and Patricia Trujillo VS Robert Duhe and SYM Realty
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2030 JOSEPH TRUJILLO AND PATRICIA TRUJILLO VERSUS ROBERT DUHE AND SYM REALTV On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 501 264 Division Honorable Timothy E Kelley Judge Presiding Joshua M Palmintier deGravelles Palmintier Holthaus Baton Marti Rouge F Attorney Fruge LLP LA Appellants Joseph Trujillo and Patricia Trujillo Attorney Ogden for Plaintiffs for Appellees Donohue Patrick P LLC Defendants Baton Robert Duhe and SYM Rouge LA Realty Terri F Love Judge BEFORE Ad Hoc BAGNERIS LOVE AND LOMBARD JJ Judgment rendered 1 AUG 2 9 2007 Bagneris Sr Judge the Honorable Terri F Love Judge and the of Appeal are serving as Honorable Edward A Lombard Judge all members of the Fourth Circuit Court ofthe Louisiana Supreme Court judges adhoc by special appointment 1 The Honorable Judge Dennis R II I f r This roots of appeal arises from Joseph Trujillo s injuries from trip and fall on the Joseph Trujillo leased his home pecan tree located outside his home a a lease b purchase 0Dm Robert Duhe d SYM Realty pursuant W agreement Joseph and Patricia Trujillo filed suit for damages against Robert Duhe to a n to a A and SYM Realty judgment seeking Robert Duhe and SYM a dismissal condition which the trial material fact exist as that the asserting court Realty filed motion for summary a entryway We do not find that granted to the defective condition of the front a defective genuine issues of was not entryway of the home and affirm FACTUAL BACKGROUND AND PROCEDURAL HISTORY Joseph Trujillo Mr Trujillo outside the front of his home following of tripped on At the time of the accident his wife to the front of the house in the groceries and talking front steps of the house to his Mr the tree roots of wife when he evening tripped over Trujillo sustained injuries 2 He Mr was a pecan tree Trujillo carrying the roots and fell to was a bag on the his knee and had to knee surgery undergo Trujillo leased the Mr Duhe pursuant house for of means over to six years to prior were aware Duhe to never commenced landscape the tree purchase Mr SYM a Mr Realty meaning that the house or exited the home Mr Both Mr Trujillo However that around the front entryway as the sole Trujillo stepped Mr roots Mr Trujillo lived in the He used the front entrance the fall of the existence of the tree area b d agreement each time he entered tree roots and Mr Duhe removed to entering and exiting the pecan having lease a home from Robert Duhe over Trujillo asked Mr project was Trujillo undertook projects around the property including He did not have the pecan tree stumps removed from the premises but instead hired to haul in dirt to someone put on top of the roots However rainwater washed the dirt away Trujillo Mr damages against created and his wife Patricia Mr Duhe and SYM Realty unreasonably dangerous condition an motion for summary judgment due to Mr dangerous condition encounter with the condition Mr Duhe and SYM granted the did s a petition for the tree roots Realty filed a motion for summary not create an unreasonably knowledge of the defect and constant tree roots Trujillo alleging Defendants The trial court judgment finding that the defect the filed Plaintiffs Trujillo timely followed This appeal STANDARD OF REVIEW Appellate Reynolds courts Select v Props Ltd motion for summary answers any to to 93 1480 La 4 11 94 judgment should be granted interrogatories and admissions show that there is entitled judgments using review summary judgment as a no genuine issue matter of law on file as to novo 634 So 2d 1180 if the standard 1183 A pleadings depositions together with material fact La C C P 3 the de art 966 B any affidavits and that The mover mover if is bears the burden of proof La C C P 966 C 2 art DUTY OF A LANDOWNER The Defendants contend the defective condition was not was open and obvious and Therefore the Defendants unreasonably dangerous aver they owed no duty to Mr Trujillo The of owner property if there is knew The or property may be held liable defect a on to the property which a causes reasonableness reasonable that the La C C a person is governed by injury could have been prevented by and that the care to owner their owner 2317 1 art standard of a the exercise of failed to exercise such reasonable owner on injury and the should have known of the existence of the defect duty owed by the injured person La care C C art 2317 1 The depends duty that Mr Duhe on 95 1466 owes to persons how obvious the defect is 96 10 5 La 591 the obviousness and apparentness of that relevant factors particular case condition may to the to be be complained 942 La Durmon the on this court Id at p Louisiana Tech property University Court stated Supreme potentially dangerous condition If the facts of Id analysis are a citing Socorro v may owe no duty City of New Orleans 1991 case 38 514 recognized an v La 8 873 So 2d Billings App to be persuasive 2 Cir 5 12 04 accident that occurred unreasonable when the risk is avoidable his on of condition should be obvious to all the 2d at 591 The trial court found Durmon determination a defect unreasonably dangerous and the defendant Pitre 673 So plaintiff v a The Louisiana considered under the show that the not 579 So 2d 931 not all Pitre to 673 So 2d 585 injured by obvious at 877 4 as a universally making its 2d 872 In in 873 So result of a defect is known and easily UNREASONABLY DANGEROUS CONDITION The Plaintiffs amounted to by is condition victim is potential a the likelihood 2 one it is nature dangerous by results from a Mr years and Id stated in his stepped over the Mr despite the fact that he testimony we not utility obvious to or whether 03 1533 pp 9 10 an injury which by the individual in the a visitor as it to the over six was a he lived in the house for was not the to paying attention duty find that the tree roots duty were the of were to his fall a to be an an Thus open and we protect Mr Trujillo from the exercising reasonable unreasonably defective 5 night of landowner and Mr tree roots care condition obvious do not find that of the tree roots in front of his house traveled them find the entryway open and of the roots regarding in this instance traveled them without do deemed includes the which He stated that the roots Trujillo observed prior the Defendants owed was aware daily was aware Louisiana law condition which Mr Trujillo was as Trujillo indicated that he the fall s of harm be 3 the cost of preventing the harm deposition that tree roots to Considering which risk a complained of of the A landowner is not liable for 235 care or obvious Trujillo utility Knights of Columbus v which 9 866 So 2d at 235 at p Trujillo all the condition that should have been observed exercise of reasonable landowner Hutchinson nature to may of the plaintiffs activities in terms of its social 866 So 2d 228 La 2 20 04 degree condition magnitude obviousness and apparentness of the condition and 4 the The A 1 upon and defective condition that a factor in the determination of whether dangerous unreasonably unreasonably dangerous depending condition was unreasonably dangerous condition an may be observed the contend that the entryway daily Therefore Mr and we DECREE For the above mentioned the reasons judgment of the trial summary judgment in favor of Robert Duhe and SYM Realty court granting is affirmed AFFIRMED 6
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