Cyd Higgins VS Albert Richard and Liberty Mutual Fire Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 2504 CYD HIGGINS VERSUS ALBERT RICHARD AND LIBERTY MUTUAL FIRE INSURANCE COMPANY June 12 2009 Judgment Rendered Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number The Honorable Charlotte A Timothy Rouge 389 546 Kelley Judge Presiding Counsel for Plaintiff Pugh Pamela L Ashman Baton E Appellant Cyd Higgins LA Keith S Giardina Counsel for Defendants Baton Albert Rouge LA Fire Insurance R Appellees Liberty Mutual Company Richard and WHIPPLE AND DOWNING JJ WHIPPLE J This matter is before of the trial judgment court us appeal by plaintiff Cyd Higgins on granting in favor of defendants Liberty Mutual Fire Insurance Liberty Mutual Company On October 30 2005 assisting was The truck it was sitting was him in plaintiff converting located in Richard on blocks the concrete exiting step The to a present at the home of Albert Richard bread truck into gutted driveway which was consisting of a front and led driveway the truck s was hunting a somewhat sloped where retrieve to piece a a top and two sides that the interior steps of the bread truck of wood step collapsed causing her to plaintiff stepped fall and sustain The injuries fall Richard added a piece of wood to the bottom of the step for Once the truck was moved stability to a sat While the wooden onto plaintiff fell again on the step while exiting the truck After weekend camp In order to enter and exit the truck Richard constructed box type step made of plywood on a judgment summary Albert Richard and his homeowner insurer and from following the second support and more the location where Richard hunts Richard eventually burned the step and built new ones As a result of her injuries plaintiff Mutual contending that the Richard and Liberty dangerous that Richard had that Richard had breached his The defendants filed step did not create an filed suit a a duty to warn makeshift step duty to provide for the safety of his guests motion for summary judgment trial that the step created defect creating unreasonable risk of harm and that plaintiffs damages plaintiff had previously contending that the inherently dangerous condition that plaintiff would be to prove at for inherently was guests of its dangerous condition and unable an seeking damages against an inherently dangerous they Defendants further contended that exited and entered the truck 15 2 were condition not or responsible by her own testimony to 20 times with no and that problem truck to fall offered the of the plaintiff In the step on was the person out of many who had entered the only support of their motion for summary judgment they deposition testimony of Richard and step Plaintiff responded by filing In her judgment step examined by opposition an opposition plaintiff contended an of this critical spoliation should presumption the motion for summary to that she was unable to have the expert because Richard had destroyed the step by burning it after he had received notice of her claim the plaintiff along with a photograph be Plaintiff further contended that piece of evidence by that applied it Richard and defective was an due to adverse presented an unreasonable risk of harm After a hearing motion for summary on May 5 2008 judgment finding that prejudice was Appellate the trial review summary courts criteria that govern the trial appropriate the signed by granted the defendants court here s no proof of a defect or judgment dismissing plaintiffs court on June 23 2008 Plaintiff appeals now is t A written unreasonably dangerous condition claims with the trial movant La before to 977 So issues of fact us given s judgment as 2d 880 de novo using the same determination of whether summary judgment whether there is any e is entitled 2 26 08 genuine i court judgments a genuine issue of material fact and whether matter 882 883 remaining which of law In this can not Samaha case we v Rau 2007 1726 find that there be determined on are the record the unresolved issue of the destruction of evidence and the presumption of spoliation The theory of spoliation of evidence alleged by plaintiff intentional destruction of evidence for the purpose of of its use Quinn v RISO Investments Inc 3 refers to an depriving opposing parties 2003 0903 La App 4th Cir 3 3 04 18 6 869 So 2d 922 926 927 writ denied 2004 0987 La A failure of litigant a to evidence within his reach raises produce that evidence would have been detrimental Motors writ denied 95 0194 spoliation is not La 763 So 2d 704 709 his 94 Where suit has not countered with her was burned by was was evidence scheduled to counter or to burning the steps thereof be determined without not making credibility or determinations contravention of judgment summary facts such at 927 as was in not t hat a rarely appropriate for cases where is and motives as to plaintiff the time the step at injured s on the insurer and Although good faith Richard or lack weighing the evidence and essential item of proof in support recognized in the jurisprudence a knowledge spoliation his determination based or good faith alleged on subjective Quinn 869 So 2d summary where the motive for destruction of evidence is material issues of fact remain theory of The defendants have allegation trier of fact As claims plaintiff s the step intentional regarding this intent motive malice Thus appropriate is inspect refute this testified that his can attests a at 927 seeking compensation from his homeowner knew that the insurer no evidence that discarded the was a 3 31 00 the motion for summary judgment affidavit wherein she own no Mr Richard Mr Richard knew that she had been step knew she presented to App 1st Cir been filed and there is spoliation of evidence does not apply Quinn 869 So 2d support of her opposition of presumption The produce the evidence has party knew suit would be filed when the evidence In General v 646 So 2d 1019 1026 Blanchard 99 0277 La v presumption a Randolph case 2d 276 So when the failure to Allen explanation reasonable 651 3 17 95 applicable to App 1st Cir 11 10 93 1983 La Corporation 876 So 2d 808 04 judgment is disputed not and where knowledge of a claim and the circumstances surrounding the destruction 4 of critical evidence See Robertson v Frank s Super Value Foods Because notice of this the trial find we pending court erred Accordingly the in Uniform Courts Rules assessed against the 2008 592 La App 5th Cir material issue of fact remains claim at granting judgment remanded for further Insurance a Inc summary judgment of the trial Appeal defendants to the time he burned the step proceedings of as court on Rule 2 16 1B Company REVERSED AND REMANDED 5 So 2d whether Richard had at issue we find that the limited record before it is reversed and this We issue this appellees 1 13 09 opinion is in accordance with Costs of this Albert Richard and matter Liberty appeal are Mutual Fire
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