JORGE A. ESPINOSA
ACCOR NORTH AMERICA, INC., ET AL
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2011-07875, DIVISION " I-14" . Honorable Piper D. Griffin, Judge.
Donald F. deBoisblanc, Sr., Donald Francis deBoisblanc, Jr., deBoisblanc and deBoisblanc, New Orleans, LA, -AND- John A. Leslie, Law Office of David A. Canale & Associates, P.C., Marietta, GA, COUNSEL FOR PLAINTIFF/APPELLANT, JORGE A. ESPINOSA.
Michael R. Sistrunk, Heather M. Nagel, McCRANIE SISTRUNK ANZELMO HARDY McDANIEL & WELCH, LLC, Covington, LA, COUNSEL FOR DEFENDANT/APPELLEE, ACCOR FRANCHISING NORTH AMERICA, LLC.
Robert M. Kallam, John F. Colowich, PREIS & ROY, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLEE, ARCH SPECIALTY INSURANCE COMPANY.
(Court composed of Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Rosemary Ledet).
Terri F. Love, J.
[2014-1276 La.App. 4 Cir. 1] This appeal arises from a shooting at a Motel 6 in New Orleans East, which rendered the plaintiff a paraplegic. The plaintiff, a guest at the Motel 6, was in the Motel 6 parking lot when he was shot by an armed robber. Plaintiff filed suit against the national Motel 6 franchise, as well as the local franchisee, alleging that the motel was liable because a broken gate enabled the armed robber to enter the parking lot. The national Motel 6 franchise and its insurer filed a joint motion for summary judgment contending that it owed no duty to the plaintiff, as it did not control day-to-day operations at the local Motel 6. The trial court found that no genuine issues of material fact existed as to the lack of duty, and granted the motion for summary judgment. We find that no genuine issues of material fact exist because the national Motel 6 franchise did not owe a duty to the plaintiff pursuant to the doctrines of direct negligence, actual authority, or apparent authority. Accordingly, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Jorge A. Espinosa was staying at the Motel 6 (" Motel" ) on Gentilly Boulevard for approximately two weeks when he was shot by an armed robber in the Motel parking lot. The shooting rendered Mr. Espinosa a paraplegic. Mr. [2014-1276 La.App. 4 Cir. 2] Espinosa filed a Petition for Damages against Accor Franchising North America, LLC n/k/a G6 Hospitality LLC (" Accor" ); Accor's insurer, Arch Specialty Insurance Company (" Arch" ); the owner and operator of the franchise in question, Bayou Hospitality, LLC, (" Bayou" ); and Bayou's insurer, Century Surety Company (" Century" ), contending that a missing section in the
Motel's fence enabled the armed robber to enter the premises and shoot him.
Accor filed a cross-claim seeking defense and indemnity from Bayou and Century. Accor and Arch filed a Joint Motion for Summary Judgment asserting that no genuine issues of material fact existed because there was no evidence that Accor controlled, owned, or operated the Motel. The trial court agreed and granted their Joint Motion for Summary Judgment. Mr. Espinosa's devolutive appeal followed.
Mr. Espinoza contends that the trial court erroneously granted Accor and Arch's Joint Motion for Summary Judgment because genuine issues of material fact exist as to Accor's direct negligence, actual authority over Bayou, and apparent authority over Bayou.
STANDARD OF REVIEW
" The appellate court standard of review of summary judgments is de novo." Brunet v. Fullmer, 00-0644, p. 2 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241. We must use the " same criteria that govern the district court's consideration of whether summary judgment is appropriate." Schroeder v. Bd. of Sup'rs of Louisiana State Univ., 591 So.2d 342, 345 (La. 1991).
A motion for summary judgment shall be granted " if the pleadings, [2014-1276 La.App. 4 Cir. 3] depositions, answers to interrogatories, and admissions, together with the affidavits, if any . . . show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966 (B)(2). The Louisiana Supreme Court " has recognized that a 'genuine issue' is a 'triable issue,' an issue in which reasonable persons could disagree." King v. Parish Nat'l Bank, 04-0337, p. 8 (La. 10/19/04), 885 So.2d 540, 546, quoting Jones v. Estate of Santiago, 03-1424, p. 6 (La. 4/14/04), 870 So.2d 1002, 1006. Further, the Louisiana Supreme Court " has defined a 'material fact' to be one in which 'its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery.'" Id.
" The burden of proof remains with the movant." La. C.C.P. art. 966(C)(2). " However, if the movant will not bear the burden of proof at trial on the matter" then the movant does not have " to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La. C.C.P. art. 966(C)(2). " Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion." Schroeder, 591 So.2d at 345. " The party who defended against the motion for summary ...