Lucretia L. Garrett VS State Farm Fire and Casualty Company, Direct General Insurance Company of Louisiana, Bridget A. Leco and the State of Louisiana, through the Louisiana Department of Transportation and Development (DOTD)
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NOT UFS FOR PUBLICATION GNATED E I SCA OF LOUISIANA COURT OF APPEAL FIRST CIRCUI i 2013 CA 0344 LUCRETIA L GARRE TT VERSUS STATE FAI FIRE AND CASUALTY COMPANY VI DIRECT GENEPc INSURANCE COMPANY OF LOUIS L ANA IA LECO AND THE STATE OF LOUISIANA THROUGH BRIDGE CHE LOUISIANA DGPARTMENT OF TRANSPORT AND ATION DEVELOPMENT xnent i Ju Rendered DEC 0 5 2013 PPEALED FROM I TWENTY JUDICIAL DISTR C E F1RST CTCOUR IN AND FOR PnRISH OF LIVINGS fHE ON STATE OF LOU1SInNA I DOCKE NUMBER 123468 HONOFL BLE WAYNE RAY CHUTL JUDGE x L C Weeks erald Attorney for Plaintiff Appellant PiiriFVille Louisiana Lucretia L Gari Julie orney At for Defendant Appellee N Fntcrn deGeneres Rouge Louisiana State Farm Fire and Company BEFORE ew c rr 1 WHIPPLF PETTIGRFcu vt WAND McDONAI DJJ L C ut vi a J h v Casualty McllONALD J In this appeal the plainLiff in a personal injury suit challenges the trial s court judgment granting summaiy judgment in favor of a property insui and missing di the insurer as a defcndant in plaintiff suit For the fioliowing reasons s we affirm FACTUAL AND PROCEDURAL IIIS CORY On April 9 2008 F3illy and Constance Garrett and their 44 old year daughter Luct Garrett were temporarily staying at a house owned by Mrs Garrett in Maurepas Louisiana R68 121 128 The house was located in a curve of I ouisiana Highway 22 a rural two roadway and sat approximately 60 feet lane fxom the i R4 170 Near dusk R135 as Mr Garrett and Luctetia sat on the oad on i atio of the house Bridget A Leco was driving on Highway 22 when she faiJed to negotiate the curve in front of the house left the highway and struck rci L and the house R4 Lucretia sustaiued serious injuries including G of her left leg knee and ankle as well as a compression ti of her spine R82 She underwent multiple surgeries and approximately two years r af the accident Lucretia continued to suffer chronic pain and had been unable to e urn i to her job as an electrician R84 9R 99 On March 31 2009 Lucretia filed this suit for damages against Ms Leco Direcl General Insurance Company of Louisiana Direct General Ms Leco s automobile insurer State IFire and Casualty Company State arn Mrs arm s Gatrett rental property insurer and the State of Louisiana through the Department of Transportation and Development State R3 Lucretia did not naroe her mother Mrs Garrett as a defendant in the s howevec State Farm zit s alleged liability was based on Mrs Garrett its insured failure to notify s s 1ltliougli we do not consider assertions made in briefs in rendering a decision of appeal avcording to Lucretia appellate brief she settled her claims against Ms Leco and Direct s Gcneral and thesc partics wcre dismissed from thc suit Appellanl brief at p3 2 Lucretia as an invitee that the house had a condition because it sat in delective the curve on ighway 22 where Mrs Garrett knew prior accidents had occurred K n due course State Farm filed a motion for summary judgrnent seeking dismissal of Lucretia claims against it R52 The trial court held a hearing on s St2te Farm motion at which it considered evidence regarding Mrs Garrett s s vledge kruo of prior accidents on Highway 22 near her house R328 The trial court ultimately determined that under the facts presented Mrs Garrett had no durty to varn I a danger condition created by the house proximity to ucretia of s a rcurve of Highway 22 R3 350 353 On October 10 2012 angerous 9 354 the trial court signed a judgment granting State Farm motion for summary s cnt ign u jand dismissing State Farm as a defcndant from the suit R318 Lucretia appeals from the adversejudgment essentially contending there are disputed factual issues regarding the scope of Mrs Uarrett duty specifically s relzvant to whether the accident was foreseeable SCUSSION D Appellate courts review a judgment granting or denying a motion for summary judgment de novo A motion fot suinmary judgment wil be granted if thc pleadings depositions answers to interrogatories and admissions on file ether to wilh the affidavits if any show that tliere is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law La P C art 966 The summary judgment procedure is favored and is designed B to secure the just speedy and inexpensive detennination of actions La C P ai 66 Thus we ask the saine questions the trial court does in detertnining 2 A whether summary judginent is appropriate whetl there is any genuine issue of cr terial m fact and whether the mover is entiUed to judgment as a tnatter of law crwiard E v Ellis 2011 La 7 l 1 I So 995 1002 Because it is the 2377 12 2 3d 3 I applicable substantive law that determines materiality whether or not a particular fact iu dispute is material can be seen ouly in light of the substantive law plicable a to the case Smith v Kopynee 2012 La App 1 Cir 6 1472 13 7 1 19 So3d 835 837 Generally the owner of immovable property has a duty to keep such perty pr in a reasonably safe condition Vinecinelli v Musso 2001 La 0557 pp I Cir 2 8l8 So 163 165 writ denied 2002 La 6 818 02 27 2d 0961 02 7 So d 767 He must discover any unreasonably dangerous condition on his ises pren and either correct the condition or warn potential victims of its existence Id lduty is the same under the strict liability theory of La CC art 2317 his 1 and 2322 ee Rainey v Steele 2010 La App I Cir 8 I 2011 WL 2154 17 729360 3 unpublished writ denied 20l 1 La 1 1 l 75 So 466 and 3 20 I 18 3d the negligence liability theory of La C art 2315 Vinecinelli 818 So at 165 2d Under cither theory the plaintiCf has the but of proving thaL 1 the peoperty that caused the damage was in the custody of lhe defendant 2 the property had a condition that created an unreasonable risk of harm to persons on the premises 3 the unreasonably dangerous condition was a cause in fact of the resulting y a inj and 4 the defendant had actual oi constructive knowledge of the risk Id After a de novo review of the evidence we Gnd the trial court con granted summary judgment in favor of State Farm in this case Although a homeowner has a duty to discover and either correct or warn a guest of any nreasonably dangerous conditions on his premises this duty docs not make the owner an insurer of his against guests all possibility of accident Breaux v Fresh Start Properties L 11 La App 5 Cir 11 78 C 262 29 3d So 849 853 The summary judgment evidence shows that in her history as a resident and owner of the house which was built by her parents in the late or Os 1 R251 j ai donated to her in the late 1990s Rl 16 Mrs Gai was aware d 4 that motorisis often had difficulty negotiating tile curve in fi of the house and ont on multiple occasions this difticulty had resulted in vehicles leaving Higl 22 way neac and on the property where the house was located R138 251 However even if Mrs Garrett awareness of the dangerous curve gave her a duty to warn guests s tllat it was possible that vehicles might leave I 22 and enter her pi ighway operty thc cvidence does not create a material issue of fact that her duty encompassed the risk that a vehicle would strike a person sitting on the ft patio of the house n ont other words the iisks encompassed within the scope of Mrs Uan duty included only those risks that were probable and foreseeable not those risks that were merely possible and foreseeablc See Mayeur v Time Saver Inc 484 2d So 192 195 La App 4 Cir writs denied 486 So 751 753 La 1986 2d hus I because the incidenY causing Lucretia injuries was not reasonably s foreseeable Mrs Garrett had no duty to warn her of this possible hann and the trial court correctly granted summary judgment in favoi of State Faru1 CONCLUSION For the above reasons we affirm the trial court judgment granting State s s Farm summat judgn and dismissing State Farm as a defendant in Lucretia ent s rrett G suit Costs of this appeal are asscssed to Lucretia Garrett AFFIRMED 5 LUCRETIA L GARRElZ tiUMBER 2013 CA 0344 VERSUS QURT OF APPEAL STATE FARM FIi2E AIVR CASIDALTY FTr2ST CIitCUIT COMPANY OF LOUISIANA BRI E TATE OF L JUISIANA A LECO AND THE STATE OF LOUISIANA THROUGH THE LOl7ISI V DEPARTMENT OF TRANSPORTATIC f AND DEVELOPMENT i BEFORE WHIPPLE PETTIGREW AND McDQNALD J PETTIGREW J CONCURS AND ASSIGNS REASONS l I agree with the majority I further point out that there is no evidence of a dangerous condition on Mrs Garrett property as required under the strict liability s theory or negligence theory
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