Evelyn C. Jackson VS Florene A. Brumfield and The Hartford
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009CA2142 EVELYN C JACKSON VERSUS FLORENE A BRUMFIELD AND THE HARTFORD Judgment Rendered June 11 2010 Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No C565359 The Honorable William A Morvant Judge Presiding Anthony T Marshall Gonzales Louisiana Counsel for PlaintiffAppellant Evelyn C Jackson Michael L Stewart Counsel for DefendantsAppellees Maria B De Gracia Florene Brumfield and The Metairie Louisiana Hartford BEFORE DOWNING GAIDRY AND McCLENDON JJ GAIDRY J The plaintiff Evelyn C Jackson sued the defendants Florene A Brumfield and her homeowner liability insurer The Hartford claiming s that she was injured at a garage sale held at Mrs Brumfield shome when an exercise machine collapsed as she was testing it The defendants moved for summary judgment filing affidavits executed by Mrs Brumfield and her daughter Jan Johnson attesting to the facts that the garage sale was held by Ms Johnson at Mrs Brumfield home that Ms Johnson owned the s exercise machine for sale and that Mrs Brumfield was not involved in and did not participate in the garage sale in any capacity In opposition plaintiff filed an affidavit in which she alleged that Mrs Brumfield was aware that a garage sale was being held at her home or should have been aware that a garage sale was being held at her home The 19th Judicial District Court granted the motion and dismissed plaintiff suit with prejudice Plaintiff s appeals We affirm The mover has the burden of proof that he is entitled to summary judgment See La C art 966 If the mover will not bear the P 2 C burden of proof at trial on the subject matter of the motion he need only demonstrate the absence of factual support for one or more essential elements of his opponent claim action or defense s La C art P 2 C 966 If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party claim s action or defense then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial La C art 966 P 2 C If the mover has put forth supporting proof through affidavits or otherwise the adverse party may not rest on the mere allegations or denials of his 2 pleading but his response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial La C art 967 P B Plaintiff contends that a genuine issue of material fact exists as to Mrs Brumfield liability under the theory of strict liability of La C arts s 2317 and 2317 as the owner of property having an unreasonably dangerous 1 condition or defect recovery Plaintiff is in error regarding that legal theory of The 1996 amendment enacting La C art 2317 effective 1 April 16 1996 abolished the concept of strict liability governed by prior interpretation of La C art 2317 A more appropriate term now for liability under La C arts 2317 and 2317 might be custodial liability 1 but such liability is nevertheless predicated upon a finding of negligence Rogers v City ofBaton Rouge 04 1001 pp 45 La App 1st Cir 6 05 29 916 So 1099 1102 writ denied 05 2022 La 2 922 So 1187 2d 06 3 2d Plaintiff thus bore negligence the burden of proof of Mrs Brumfield s Two essential elements of such proof under the dutyrisk analysis of delictual liability are the existence of a legal duty of the alleged tortfeasor toward the injured person and the breach of such duty by the alleged tortfeasor There was no factual showing or suggestion that Mrs Brumfield participated in supervised monitored assisted or benefitted from the garage sale or that she was even present during the time plaintiff was there There was likewise no factual basis shown for any conclusion that Mrs Brumfield knew or should have known of any alleged defective condition of the exercise machine Mrs Brumfield mere status as owner s of the immovable property upon which the garage sale was conducted without more is insufficient to impose a duty upon her toward plaintiff regarding the exercise machine owned by her daughter And such status without more is too tenuous a basis for imposition of liability relating to the 3 condition of a movable that she did not own or otherwise exercise any control over The trial court was correct in concluding that there was no genuine issue of material fact presented regarding Mrs Brumfield salleged liability and that she could not be found liable as a matter of law under the undisputed facts presented Accordingly we affirm the judgment All costs of this appeal are assessed to the plaintiff Evelyn C Jackson AFFIRMED in
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