APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2011-07321, DIVISION " I-14" . Honorable Piper D. Griffin, Judge.
RODNEY GLENN CATER, AMANDA CATER GRAEBER, CATER & ASSOCIATES, LLC, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
GEORGE P. HEBBLER, JR., THOMAS MILTON YOUNG, HEBBLER& GIORDANO, Metairie, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins).
SANDRA CABRINA JENKINS,
[2014-0023 La.App. 4 Cir. 1] This is a personal injury suit. Plaintiff, Daffney Davis, sustained scald burns from the bathwater at her leased condominium. Plaintiff filed suit against the owner and lessor of her condominium unit, Gulf Property Investments, L.L.C. (" GPI" ), and other defendants, asserting claims of strict liability and negligence. GPI filed a motion for summary judgment seeking dismissal of plaintiff's claims against it. Plaintiff then filed a motion for partial summary judgment against GPI on the issue of liability. The trial court denied plaintiff's motion for partial summary judgment, granted summary judgment in favor of GPI, and dismissed plaintiff's claims against GPI with prejudice.
Plaintiff now appeals the trial court's judgment granting GPI's motion for summary judgment. After de novo review, we affirm.
FACTS AND PROCEDURAL HISTORY
In July, 2007, plaintiff leased condominium unit #381 at Riverside Court Condominiums (" Riverside" ) from the unit owner, GPI. GPI owns only one individual unit at Riverside, which comprises 198 units. All condominium units at [2014-0023 La.App. 4 Cir. 2] Riverside are managed by the condominium association, Riverside Court Condominium Association Phase II, Inc. (" RCCA" ).
While living at unit #381, on January 21, 2011, plaintiff drew a bath for herself. As plaintiff stepped into the bathtub, the water scalded her; and before she could get out of the bathtub, plaintiff sustained severe burns. Plaintiff called 911 for help, and an ambulance arrived and took her to East Jefferson General Hospital. Due to the severity of her burns, plaintiff was transported to Joseph M. Still Burn Center in Augusta, Georgia. Plaintiff was treated for 40% body surface area burns, and she remained hospitalized for two to three months.
On July 11, 2011, plaintiff filed suit against GPI, RCCA, Catlin Specialty Insurance Company, and Saia Plumbing Company seeking damages for the injuries she sustained at Riverside unit #381 on January 21, 2011. Within the petition, plaintiff asserted claims of negligence and strict liability against both GPI and RCCA. Plaintiff alleged that both defendants had complete custody and control of the leased premises and of the systems providing hot water to the leased premises. Plaintiff also alleged that both defendants owed and breached their respective duties to inspect the premises, make all necessary repairs, and discover any vices or defects in the premises. Plaintiff further alleged that GPI and RCCA were both strictly liable as the owner and custodian of the premises and the hot water system, pursuant to La. C.C. arts. 2317 and 2317.1. Finally, in plaintiff's [2014-0023 La.App. 4 Cir. 3] second supplemental and amending petition, plaintiff alleged that GPI breached the warranties against vices and defects pursuant to La. C.C. arts. 2696, 2697, and 2698.
On October 23, 2012, GPI filed a motion for summary judgment seeking dismissal of all claims asserted against it by plaintiff. GPI argued that the lease agreement with plaintiff relieved GPI of the lessor's warranty against vices or defects in the premises; and plaintiff assumed responsibility for the condition of the premises, pursuant to La. R.S. 9:3221. GPI also argued there is no evidence to support plaintiff's claims of negligence or strict liability against it, because GPI had no custody, control, or responsibility for the hot water system or any alleged defect causing plaintiff's injuries. GPI owed no duty to plaintiff with respect to those things that were not within its custody or control; and furthermore GPI neither knew nor could have known of the alleged defect in the leased premises. Without custody or control of the thing or knowledge of the defect, GPI argued, there was no evidence to support plaintiff's negligence or strict liability claims.
On June 20, 2013, plaintiff filed an opposition to GPI's motion for summary judgment, and, on July 22, 2013, plaintiff filed a motion for partial summary judgment against GPI on the issue of liability.
On September 20, 2013, the trial court held a hearing on the cross motions for summary judgment. In consideration of the parties' arguments and all exhibits introduced into the record, the trial court
granted summary judgment in favor of GPI and denied plaintiff's motion for summary judgment. Plaintiff now appeals [2014-0023 La.App. 4 Cir. 4] the trial court's judgment, signed on October 15, 2013, granting GPI's motion for summary judgment and dismissing all claims against GPI with prejudice.
STANDARD OF REVIEW
Appellate courts review summary judgment de novo, using the same criteria that govern the trial court's determination on the motion for summary judgment, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Schultz v. Guoth, 10-0343, pp. 5-6 (La. 1/19/11), 57 So.3d 1002, 1005-06 (citing Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 883.)
Summary judgment is properly rendered " if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any... show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B)(2). The initial burden of producing evidence to support the motion for summary judgment is on the moving party, " who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case." Schroth v. Estate of Samuel, 11-1385, p. 3 (La.App. 4 Cir. 4/18/12), 90 So.3d 1209, 1211 (quoting Schultz, 10-0343 p. 4, 57 So.3d at 1006). The moving party need not negate all essential elements of the adverse party's claim; rather the moving party must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim. Smith v. Treadaway, 13-0131, p. 4 (La.App. 4 Cir. 11/27/13), 129 So.3d 825, 828; La. C.C.P. art. [2014-0023 La.App. 4 Cir. 5] 966(C)(2). " At that point, the party who will bear the burden of proof at trial must present sufficient evidence to demonstrate that he or she will be able to carry that burden at trial." Id. If the moving party has properly supported the motion for summary judgment, then " the failure of the non-moving party to produce evidence of material factual dispute mandates the granting of the motion." Wright v. Louisiana Power & Light, 06-1181, p. 16 (La. 3/9/07), 951 So.2d 1058, 1070 (quoting Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La. 6/30/00), 764 So.2d 37, 40).
In her first and second assignments of error, plaintiff contends there are genuine issues of material fact that preclude summary judgment regarding GPI's liability for plaintiff's injuries. First, plaintiff asserts that GPI has ownership, custody and control of the premises; therefore, GPI is strictly liable for injuries caused by vices or defects in those premises. Plaintiff further asserts that GPI is strictly liable under the lessor's warranties in the Civil Code which plaintiff did not waive pursuant to La. R.S. 9:3221. Finally, plaintiff argues that GPI is liable for negligence for its failure to prevent or warn of the unreasonably dangerous condition on the premises that caused plaintiff's injuries.
Under Louisiana law, a party is responsible not only for damage resulting from one's own act, but also for damage caused by things within one's custody. La. C.C. art. 2317. Where damages are claimed as a result of vices or defects in [2014-0023 La.App. 4 Cir. 6] the thing within one's custody, then this precept of strict liability is to be understood with the following modification:
[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have ...