MELISSA A. SIMON AND CLARENCE L. KENNY, JR., INDIVIDUALLY, ON THEIR OWN BEHALF, AND AS THE TUTRIX AND UNDER-TUTOR OF ANTONIO DOMINIQUE KENNY AND ANTONIO DOMINIQUE KENNY, AND WILLIAM L. CRULL, III AND EDWARD J. LILLY, AS SPECIALLY-APPOINTED ATTORNEYS ON BEHALF OF ANTONIO DOMINIQUE KENNY Vs. BERTHA HILLENSBECK AND HARRY J. HILLENSBECK INDIVIDUALLY AND D/B/A THE HUMMINGBIRD HOTEL AND GRILL AND THE HUMMINGBIRD HOTEL; AND HUMMINGBIRD HOTEL, INC.; AND ALLSTATE INSURANCE COMPANY, AS THE INSURER OF THE FOREGOING DEFENDANTS; AND, KONG WONG, HARRY WONG AND CHARLIE W. TONG, AND ABC INSURANCE COMPANY
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MELISSA A. SIMON AND CLARENCE L. KENNY, JR., INDIVIDUALLY, ON THEIR OWN BEHALF, AND AS THE TUTRIX AND UNDER-TUTOR OF ANTONIO DOMINIQUE KENNY AND ANTONIO DOMINIQUE KENNY, AND WILLIAM L. CRULL, III AND EDWARD J. LILLY, AS SPECIALLY-APPOINTED ATTORNEYS ON BEHALF OF ANTONIO DOMINIQUE KENNY * NO. 2012-CA-0087 * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA * * ******* VERSUS BERTHA HILLENSBECK AND HARRY J. HILLENSBECK INDIVIDUALLY AND D/B/A THE HUMMINGBIRD HOTEL AND GRILL AND THE HUMMINGBIRD HOTEL; AND HUMMINGBIRD HOTEL, INC.; AND ALLSTATE INSURANCE COMPANY, AS THE INSURER OF THE FOREGOING DEFENDANTS; AND, KONG WONG, HARRY WONG AND CHARLIE W. TONG, AND ABC INSURANCE COMPANY BELSOME, J., CONCURS WITH REASONS Considering the troubling circumstances of this case and the applicable statutory requirements, I respectfully concur in the result reached by the majority’s opinion. To overcome summary judgment and establish a liability claim on the part of an owner who has contractually passed on responsibility for the condition of his property to his lessee under La. R.S. 9:3221, as in this case, a plaintiff must establish that (1) he sustained damages; (2) there was a defect in the property; and (3) the lessor knew or should have known of the defect. Jamison v. D'Amico, 06– 0842, p. 8 (La. App. 4 Cir. 3/14/07), 955 So.2d 161, 166. Based on the narrow set of facts and the applicable statute in this case, the plaintiffs have not established a genuine issue of material fact regarding defendant’s knowledge of any alleged defect. Mr. Wong specifically denied any knowledge as to defects on the premises. Additionally, the property was under a lease that transferred responsibility and liability for code violations and defects to the lessee. Thus, the record before us fails to establish the necessary existence of a genuine issue of material fact pertaining to this element of the plaintiff’s claim. Therefore, the defendant was entitled to judgment as a matter of law.
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