Ferinando Thomas VS Jennifer Do
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NOT DESIGNATED FOR PUBLICATION STATE OF LOiTISIANA COURT QF APPEAL FIRST CIRCUIT NO 2013 CA 0504 FERINANDO THOMAS VERSUS JENNIFER DO Judgment Rendered V Q 1 2 3 On Appeal from 19 Judicial District Court In and far East Baton Rouge Parish State of Louisiana Trial Court No C570858 The Honorable William A Marvant Judge Presiding A Hannibal Joiner Attorney for Plaintiff Appellant Baton Ferinando Thomas Rouge Louisiana Donald R Smith Attarney for Defendant Appellee Baton Jennifer po Rouge Louisiana C Shannon Attorneys for Defendant Appellee John Allstate Insurance Company Hardy Penny Jr Lafayette Louisiana W BEFORE WHIPPLE C WELCH J AND CRAIN JJ CRAIN J Ferinando Thomas appeals a summary judgment dismissing his premises liability claims against Jennifer po and Allstate Insurance Company We affirm FACTS AND PROCEDURAI HISTORY Thomas instituted this sui fo aag Do and Allstate alleging that nages znst he suffered a broken ankle a stspping Anto a u er red cov ater lhqle at the rental property owned by Do which he was visiting as a guest of Do lessee Jacqueline s Patterson R 3 58 60 96 Thomas contends that Do failed to maintain the property in a safe manner which rendered it unreasonably dangerous R 61 97 He claims that with Dds express consent Patterson had planted flowers in the area in which he fell which created loose soil that was wet due to recent rain R 97 The defendants maintain that under the terms of the lease Patterson assumed responsibility for the condition of the leased premises thereby absolving them of any liability for Thomas s injuries R 2 78 The trial court granted the s defendant motion far summary judgment and dismissed Thomas claims Thomas now appeals T DISCUSSIO A motion for summary judgment is a procedural dev used to avoid a full ice scale trial when there is no gerauin issn of rxdater4al fact All Crane Rental of e Georgia Inc v Vincent 10 I App 1 Cir 947 So 3d 1024 1027 0116 a 10 10 writ denied 2227 10 J 19 La ll 0 49 So 3d 387 Summaxy judgment is properly granted if the pleadings depositions answers to interrogatories and admissions together with affidavits if any show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law La Code Civ Pro art 966B Summary judgment is favored and designed to secure 2 The plaintiffl s first name is spelled both Ferinando and Fernandd in the record 2 the just speedy and inexpensive det ncaf very action zminatic La Code Civ Pro art 966A 2 Appellate courts review eYid de novc und nce rthe same criteria that govern the trial court d o whetner a summa zzdgment is s Yet n i sar c y i appropriate A Crane 47 5 3d a lO2i lara a anotion f sjudgment r the burden of proof is on the mcs La Code C Pro art 966 However if ex iv 2 the mover will not bear the burden of proof at trial on the matter that is before the court on the motion the mover burden does not require that all essential elements s of the adverse party claim action or defense be negated s Instead the mover must point out to the court that there is an abser of factual support for one or ce more elements essential to the adverse party claim action or defense s Thereafter the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his esidentiary burden of proofat trial If the adverse party fails to meet this burden there is na genuine issue of material fact and the mover is entitled to summary judgrnent as a matter of law La Code Civ Pro art 2All Crane 47 So 3d at 1027 966C A fact is material when its existence or nonexistence may be essential to the s plaintiff cause ofaction under the applicable theory of recovery meaning that the fact potentially insures or precludes recovery affects a lirigant ultimate success s or determines the outcome of tiie legal dispute Smith v ur Lady of the Lake 2512 Hosp Inc 93 La 7 94 5 639 So 2d 730 751 Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Richard v Hall 03 I 4 874 So 2d 131 137 8 1 a 23 IJ4 Louisiana Revised Statute 9 provides that 3221 he T owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injnry 3 caused by any defect therein to the lessee or anyone on the premises who derives his right to 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 Section 1332 is a statutory exception to the lessor strict liability for s premises defects set forth in Louisiana Civil Code article 2696 Thus when the lessee has assumed responsibility for the premises the lessor may be held responsible only upon showing that t lessor knew of the defect or should have he known of the defect or had received notice of the defect and failed to remedy it within a reasonable time La R 9 S 3221 In support of the motion for summary judgment the defendants introduced affidavits by Do and Patterson establishing that Patterson leased the property in question from Do Do attested that upon expiration of the original one term year the lease continued on a month basis with the same terms in force and to was in effect at the time of Thomas injury Patterson likewise attested that the s lease was in effect on the date in question The lease between Do and Patterson contains the following provisions The Lessor shall not be liable to Lessee or to the Lessee employees s patrons and visitors or to any other person for any damage to person or property caused by any act omission or neglect of Lessee or any other tenant of said premises and Lessee agrees to payihold Lessor harmless from all claims for any such darnage whether the injury occurs on or off the premises Lessee shall be responsible for the upkeep of the yard and assumes responsibility for the condition of the premises s Do affidavit states that she had no knowledge of any defect on the property and that she had not been notified of any defect on the property Patterson s affidavit supported Do statements denying that there were any holes or defects s Z Louisiana Civil Code article 2696 provides that a lessor warrants the lessee that the thing leased is suitable far the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose lessor That warranty extends to defects that are not known to the La Civ Code art 2697 4 on the premises and specifically stating that Pattecson had not notified Do of any holes or other defects In opposition to the motion Th offered his own affidavit the affidavit mas of Andre Sterling who witnesseci Thornas fall the lease agreement Dds answers to interrogatories photographs of the area n which he fell as well as Dds deposition testimony Thorrzas contended this evidence showed a genuine issue of material fact as to whether he was injured in an area of the property that was common ground and not covered by the lease He further contended that he showed a genuine issue of material facY as to whether po knew her tenant was planting flowers which created loose soil on properky located in a flood zone The trial court concluded that Patterson assumed responsibility for the leased premises pursuant to the terms of the lease and that Do had no knowledge of any defect on the property Finding no genuine issue of material fact reflected in the evidence offered by Thomas the trial court granted the motion in the defendants favor On appeal Thomas does not dispute that the provisions of the lease transferred responsibility of the leased premises from Do to Patterson Rather Thomas argues that there are genuine issues af material fact as to whether the lease provisions were in effect at the time he was injured and whether po knew ar should have known of the defect since she knew that Patterson was planting flowers in a flood zone After thorough review we find no merit in Thomas contentions First s both Do and Patterson attested that the lease provisions including those that transfened responsibility for the premises to Patterson were in effect at the time of s Thomas accident ond Sec both Do and Patterson testified that Do had no notice of any defect on the premises Thomas presented no evidence to the contrary 5 relative to either issue Thomas aiso provided no suppurt for his assertion that Do should be imputed with knowledge of a defect becausa she allowed her tenant to plant flowers in an alleged flood zone No evide of a flood was presented We ce find the fact tl the property was allegedly in a flood zone to be immaterial and irrelevant Lastly Thomas argues that the area c tF flowerbed is common area and fe outside the area covered by the iease and that the question of whether the flowerbed area is common area is at least a contested material fact We find no support in the record for that contention The exception provided by Section 3221 does not extend to common areas on leased premises which remain under the lessor control See Shubert v Tonti s Development Corp 09 La App 5 12129 30 So 3d 977 986 writ 348 Cir 09 denied 10 La 4 31 So 3d 393 Dorion v Eleven Eleven Bldg 98 0241 10 9 3018 La App 4 Cir 5 737 So 2d 878 880 In Ostrander v Parkland 99 12 Villa Apartments 511 So 2d 1293 1294 La App 2 Cir 1987 the court 95 explained Section 3221 does not apply to damages incurred by the lessee resulting from a defect in the property which is not part of the leased premises and over which the lessee has no supervision ar control When a common accessory is under the control of the lessor the tenant can xnaintain an action for damages flowing from an injury caused by a defect in the accessory notwithst his contractual nding assumption under Section 3221 The reasoning for this is that no single individual tenant normally assumes exclusive responsibility for the care and maintenance of common areas Shubert 30 So 3d at 986 Dds August 3 2012 affidavit sets forth that the leased property is one unit of a duplex apartment with a flowerbed next to its entryway Photographs attached to Dds affidavit show a flowerbed directly ira front of the unit door s 6 In her o affidavit L states hat hvre t c ffa Y wo tcaund as bnai by pPaintiff itained and thej duple s r a rr r ot jc tprr r dorrpd that wou have common grounds and st f a t ai te k h cc l rraain that evs irw r s ant ex p ro tains the flow as part t ti t rn for wnich at assumed rbzc ec1 C ccy c r c J i1 4i13i eS dR22c7 r si OdI7dC I bS IIC LC d 3 2 a iL 4 74 l Fnl 4 I fi i further atteete a the ci ns sr pkxca ilaF tha eci ower ae fl aramediately outside the front door of 1atR r s rt rste ur and was covered by the leas Again Thomas provided no support for his contention that the flowerbed was a common area The undisputed facts xes by Do and Patterson refute that nted contention We find that the defendanta established that Do is not liable for injuries Thomas sustained as a resa c the alleged defect in the rental property lt f The argu and evid z by do nUt reveal any genuine nents ce esexrted I homa issue of material fact that woulo y surnzaiaa yudgment de x rec y rthese reasons Fc summary judgment was appropr g SSmissira T c against ly fec at ar s as inis ic a the defendants iL7Si1 ONC C Far the forego reasc t judg of the trial c is affiz Costs rng ns te r ent rt u med of thes appeal ar assessed to F Ihama c ririar AFFIRMEDe
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