Steve Wayne Pourciau, Charlotte M. Pourciau and Steve Wayne Pourciau on Behalf of His Minor Child, Taylor Wayne Pourciau VS Ecco Nino, Inc., d/b/a Nino's Restaurant, ABC Insurance Company, Wings Three LA, L.L.C., d/b/a Buffalo Wild Wings Grill & Bar, DEF Insurance Company, Equity One (Louisiana Portfolio), L.L.C. and GHI Insurance Company

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NQT DESIGNATED FOR PUBLICATTON STATE OF LOUISIANA COURT OF APPEAL ST FTf CIRCIJ N0 2011 CA Z031 STEVE WAYNE POURC CHARLOTTE M POURCIAU AU STEVE WAYNE POURCIAU ON BEHALF OF HIS MINOR CHILD TAYLOR WAYNE POURCIAU VERSUS ECCO NINO INC d NINO RESTAURANT ABC INSURANCE COMPANY a bS WINGS THREE DEF I NGS CB LA L D BUFFALO WILD W GRILL A BAR SURANCE COMPANY EQUITY OIVE LOUISTANA PORTFOLIO LLC GHI INSURANCE COMPANY Judgment rendered AUG 2 Appealed fram the f Ua 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No C564575 Honorable R Mich Caldwel9 Jud el e GLORIA A ANGUS LOUSAS OP LA ATTORNEYS FOR APPELLANTS PLAINTIFFS STEVE WAYNE PQURCIAU AND PAUL J SCOPTUR MILWAUKEE WI CHARLOTTE POURCIAU STEVE WAYNE POURCIAU ON BEHALF OF HIS MINOR CHILD TAYLOR WAYNE POURCIAU FFREY JP ROBERT MANDEVILLE LA ATTORNEY FOR APPELLEE DEFENDANT ECCO NINO INC d NINO a b S STAURANT R CHRISTIAN B BOGART MEfAIRI LA ANb ADRIEN G BUS IQST BATON RLA IJGE ATTORNEYS FOR APPELLEE DEFENbANT EQUITY ONE LLC ALBERT D GIFtAUD ATfORNEY FOR BATON ROUGE LA APPELLEE DEFENbANT WINGS TMR LA LL d Cb a BUFFALO WILD WINGS GRILL BAR BEFORE PETTIGREW McCLENDON AND WELCH JJ 2 PETTTGREW J In this persanal injury action the plaintiff a service technician allegedly slipped and fell whil descending a ladder affixed to the side of a commercial building The nt inst appeal is one af two presently befor this court h rise fram the trial court t s grant af summary judgments in favor of difFerer def t ndants Far the fallowing reasons the trial caurk grant of summary judgment in favor of ECCO Nino Inc d Nino s a b s Restaurant Nino and Equity One LLC Equity Qn is hereby affirmed s On March 1 2007 plaintiff Steve Wayne Pourciau a heating and air appellant conditioning repairman respanded to a service call at the restaurant leased by defendant s Nino and located in the Bluebannet Village Mall The Bluebonnet Village Mall is a commercial strip shapping center owned by defendant Equity One and situated on Bluebannet Boulevard in Batan Rouge Louisiana The air conditioning unit that served Nino was located on the roof of the shopping s center and was accessible via a metal service ladder permanently affixed ta the rear wall of the s building Said ladder was situated between the rear entrances of Nino and an adjaining restaurant leased by defendant Wings Three LA LLC d Buffalo Wild Wings a b Grill Bar BWW In arder to repair the unit Mr backed his pickup truck into Pourciau r the service area behind BWW and ascend the servic ladder to the roof After removing d a defective fan motar fram the unit Mr Pourciau descended fram the roof carrying the motar via the service ladder and returned along the same path to his truck After purchasing a new motor at a parts store Mr Pourciau returned to the shopping center abaut forty minutes later and parked his truck in the same location Mr Pourciau aseended the service ladder again with the new motor and perFormed the necessary repairs The r pairs toak approximately fifte minutes While descending the n ladder after repairing the fan Mr Pourciau claimed that ane of his feet slipped from an upper rung causing him to fall approximately twenty feet to the concrete below Mr Paurciau alleged that after his fall he hobbled about ten feet to his truck which was backed up into the service area behind the BWW restaurant As he sat on the tailgate of his truck r boot Mr Pourciau noticed an oily residue an the sales of moving his 3 his boots Mr Pourciau furkher alleged that as a result of this fall he sufFered severe and bilitating d injuries to his right foot He th underwent surgical procedures in reafter March and December of 2007 to reconstruct his shattered heel On February 28 2008 a Petition far Damages was filed an behalf of Mr Pourciau his wife Charlotte M Pourciau and their minor child Taylar Wayne Pourci collectively u Plaintiffs in the 19 Judicial District Court Named as defendants therein w Nino re s BWW and quity One PlaintifFs filed an Amended and Supplemental Petition on July 17 20Q8 wherein they named AIG Insurance Services Inc GAB Robins North America Inc Travelers Insurance Company and Fireman Fund Insurance Company as additional s defendants in this action On January 21 2010 plaintiffs filed another Amended and Supplemental Petition wherein they named Griffin Industries Inc Griffin the pravider of a grease disposal vat for discarded caaking oil at the BWW restaurant as an additional defendant in this matter PlaintifFs subsequently dismissed their claims against defendant GrifFin with prejudice after Griffin filed a motian seeking summary judgment In April 2011 co BWW Nino and quity One similarly sought defendants s dismissal of plaintiffs claims against them through the filing af individual motians far summary judgment Following a hearing held on June 27 2011 the trial court granted the motions for summary judgment filed on behalf of co Nino and Equity One defendants s and accardingly dismissed plaintifFs clairres a said defendants at plaintiffs costs ainst From this judgment plaintifFs now appeal Tn connection with their appeal in this matter plaintifFs contend tha the trial caurt erred in granting summary judgment in favor of Nino and Equity One as there remained s erial ma issues of fact relative to Nina and Equity One knowledge of the vice contral s s over the premises and failure to warn 1 Plaintiffs later dismissed defendant GAB Robins North America Inc voluntarily through a motion and order signed on December 12 2008 2 The trial caurt following an earlier hearing on May 9 2011 previously granted BWW motion for summary s judgment and dismissed plaintifFs claims against BWW at plaintiff costs Plaintiffs have similarly appealed s fram that judgment which is addressed in our companion opinian in Steve Wayne Pourciau et al v Ecca Nina Inc et al 2011 CA 1789 La App 1 Cir I 4 i A motion for summary judgment is a procedural device used ta avoid a full scale trial when there is no issue of material fact genuine Gonzales v Kissner 200 2154 p 4 App 1 Cir 924 So 214 217 Summary judgment is properly granted La 09 11 3d if the pleadings depasitions nsw tq interrOg and admissions on file together rs tOries with affidavits if any show that there is no genuine issue of material fact and that maver is entitled ta judgment as a matter of law La Code Civ P art B 956 Summary judgment is favored and is designed to secure the just speedy and inexpensive determination of every action La Cade Civ P art 966 Aucoin v Rochel 2008 2 A 1180 p 5 App 1 Cir 12 5 So 197 200 writ denied 2009 La La 08 23 3d 0122 09 27 3d 3 5 So 143 On a motion for summary nt judgm the burden of proof is an the mover If hawever the maver will not bear the burden af praaf at trial on the matter that is befor the court an the mation for summary judgment th mover burden on the motion does s not require that all essential elements of the adverse party claim action or defense be s negated Tnstead the mover must point out to the caurt that there is an abs of nce lsupport for one or more elements essential to the adverse party claim action ar factu s fense d Thereafter the adverse party must praduce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of praaf at trial If he adverse party fails to meet this burden there is no g issue of material fact and the nuine maver is entitled to summary judgment La Code Civ P art 965 Robles v 2 C oconMobile 0 E 2002 p 4 App 1 Cir 3 44 So 339 341 54 La 03 28 2d In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial court determination of s whether summary judgmen is appropriate La 5 App Boudreaux v Vankerhove 2007 2555 Cir 8 0993 So 725 An appellate court thus asks the 11 2d 729 730 1 p 2 same questions as does the trial courk in determining whether summary judgment is 3 appropriate whether 4 Petroleum Service Corp 200Z p 3 App 1 Cir 11 868 So 96 97 2482 La Q3 19 2d 5 writ denied 2003 La 0866 So 830 3439 04 2d the mover is entitled to 5 judgment as a matter of law Ernest v A motion for summary judgment is a pracedural device used to avoid a full scale trial when there is no genuine issue of material fact Gonzales v Kissner 20p8 2154 p 4 App 1 Cir 9 24 o 214 217 Summary judgment is properly granted La 09 11 3d if the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue of material fact and that mover is entitled to judgment as a La Code Civ P art matter of law B 966 Summary judgment is favored and is designed to secure the just speedy and inexpensive determination of every action La Code Civ P art 966 Aucoin v Rochel 2008 2 A p 11 p 5 App 1 Cir 12 5 So 197 200 writ denied 20p9 l La 0 23 3d 0122 a 09 27 3d 3 S So 43 On a motion for summary judgment he burden of praof is on the mover If however the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover burden on the motion does s not require that all essential elements of the adverse party claim action or d be s fense negated Instead the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or s defense reafter Th the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse party fails to meet this burden there is no genuine issue of material fact and the mover is entitled ta summary judgment La Code Civ P art 966 Robles v 2 C ExxonMobile 2002 p 4 App 1 Cir 3 844 So 339 341 0854 La 03 28 2d In determining whether summary judgment is apprapriate app caurts revi llate w evidence de novo und rthe same criteria that govern the trial court determination af s I whether summary judgment is appropriate Boudreaux v Vankerhove 2007 2555 p 5 App 1 Cir 8 993 So 725 An appellate court thus asks the La Q 11 2d 729 730 same questions as does the trial court in determining whether summary judgment is appropriate whether the mover is entitled to judgment as a matter of law Ernest v Petroleum Service Corp 2002 p 3 App 1 Cir 11 868 So 9G 97 2482 La 03 19 2d writ denied 2003 La 2 66 So 830 3439 04 20 2d 5 A motion for summary judgment is rarely appropriate for dispasition of a case requiring judicial de of subjective facts such as intent mative malice good erminatian faith p or knowledge Bilbo for Basnaw v Shelter xnsurance Company 96 1476 97 30 2d 198 La 5 App 1 Cir 7 69 50 691 694 writ denied 97 La 2d 97 21 11 703 So 1312 Further issues that require the determination of reasonableness of acts and conduct of parties under all facts and circumstances of the case cannot ordinarily be dispased of by summary judgment Granda v State Farm Mutual Insurance Company 04 pp 4 La App 1 Cir 2 935 So 1722 5 06 10 2d 703 707 writ negligence are denied 2d OS89 06 La 5 927 So 326 6 In additian questions of generally inappropriate for dispasition by summary judgment Stroder v Horowitz 34 p 4 App 2 Cir 12 775 So 1175 1178 McGill v 048 La 00 20 2d Cochran Sysco Foods Div of Sysco Corp 29 p 2 App 2 Cir 2 154 La 97 26 690 Zd So 952 953 writ denied 079 97 La 2d 97 1 5 693 Sa 730 and DeStevens v Harsco Corp 94 p 3 App 4 Cir 3 652 So 1054 1183 La 95 16 2d 1057 Louisiana Civil Code articles 2317 and 2317 1 define the basis for delictual liability for defective things In p part L Civ Cade art 2317 provides rtinent 1 The owner or custadian of a thing is answerable for damage occasioned by its ruin vice or def only upon a showing that he knew ct or in the exercise of reasonable care should have known of the ruin vice or defect which caused the damage that the damage could have been prevented by the exercise of reasonable care and that h failed to exercise such reasonable care Thus to establish liability based on ownership of a thing the plaintiff must show that 1 the defendant was the owner or custodian of a thing which caused the damage 2 the thing had a ruin vice or defect that created an unreasonabl risk of harm 3 the ruin vice ar defect of the thing caused the damage 4 the defendant knew ar in the exercise of reasonable care should have known of the ruin vic or defect 5 the damage could hav b prevented by the exercise of reasanable care and 6 the en defendant failed to exercise such reasonable care La Civ Code art 2317 Granda 1 1722 04 pp 5 935 So at 707 6 2d 7p8 6 I In the present appeal plaintiffs argue hat defendants Equity One Nino and s BWW shared custody or garde aver the service ladder and its surrounding area In their brief to this court plaintiffs cite Dupree v City of New Orleans 99 3651 pp 7 La 8 765 So 1002 1009 for the prapasition that the principle of 8 00 31 2d garde is much broader than ownership and that multiple parties may have garde af the same thing In Dupree our supreme court referenced its earlier opinion in Doughty v Insured Lloyds Insurance Company S76 So 461 464 La 1991 and stated 2d that custady or garde of the thing causing injury is a fact determination driven 3551 2d Dupree 99 p 7 755 So ati 1009 The supreme caurt in Dupree further stated In attempting to define a test for determining who has custody or garde of a thing we have set forth several general principles to assist the fact of trier Most notably we have stated that in det whether a rmining thing is in one custody or garde courts should consider 1 whether the s person bears such a relationship as to have the right of direction and control aver the thing and 2 what if any kind of b the person neft derives from the thing Dupree 99 p 8 765 So at 1009 Citations omitted 3651 2d With these principles in mind we now evaluat the evidence in the record befare us to determine whether Equity One and Nino had garde ov the service ladder or s r and its surrounding area on the date of Mr Pourciau alleged accident s In the instant case quity One had a valid lease with BWW and in Section 7 2 and in Exhibit C of the lease agreement subparts H and K BWW agreed to indemnify and hold Equity One harmless fram any liability arising from defects in the premises Additionally La R 9 requires that plaintiffs demonstrate that quity One had S 3221 knowledge of a defect in its premis or should have knawn that its lessees failed to act s reasonably to prevent a defiect In granting summary judgment in favor of Nino and Equity One the trial court s concluded 3 Louisiana Revised Statutes 9 provides in p part as follows 3221 rtinent he T owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right ta be thereon from the lessee unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time 7 dumped there by BWW BWW cleaned it up had procedures for reviewing or checking the area far possible unsafe The grease was conditions No evidence that Nino created the conditian No evidence s Equity One created the conditian No evidence that Equity One had No No showing that Nino dumped grease there s knawledge that showing that they had any duty to make any inspection or have any knowledge of the conditian there And there has been no praof to show any canstructive or actual knowledge or creatian of the condition by ither Accordingly the motion for summary judgment for both of these defendants is granted and plaintiffs claims dismissed as of these defendants ta these defendants We find that the record supports the trial court grant of summary judgment in s favor of defendants Nino and Equity One as plaintiffs have failed to establish a s genuine issue of material fact that would preclude summary judgment Upon review af the record in this matter we find the trial court properly granted the motion for summary judgment filed by defendants Nina and Equity One All costs s associated with this appeal are assessed against plaintiffs Steve Wayne Pourciau his wife Charlotte M Pourciau and their minor child Taylor Wayne Pourciau FIRMED A 8

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