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Benoit v. Int'l Ins. Co. of Hanover, Se

United States District Court, W.D. Louisiana, Lafayette Division

March 22, 2017




          DOHERTY JUDGE.

         Pending before this Court is the Motion for Summary Judgment [Doc. 91] filed by defendants AVR KS Road Properties, LLC, d/b/a Audubon Lake Apartments and AVR Realty Company, LLC (collectively, "defendants"), who seek dismissal of "plaintiffs' claims against [d]efendants, with prejudice, " on grounds the plaintiffs cannot prove the essential elements of their claim. The motion is opposed by plaintiffs Carolyn D. Benoit and Norris J. Benoit, Jr. [Doc. 102], and defendants filed a Motion for Leave to File a Reply Brief [Doc. 110], which is GRANTED, For the following reasons, the defendants' motion is DENIED.

         I. Factual and Procedural Background

         The instant litigation arises out of plaintiff Carolyn Benoit's fall on the stairs outside her apartment at the Audubon Lake Apartment Homes (the "premises"). Ms. Benoit allegedly slipped on roofing debris that was left on the stairs of the apartment complex following the replacement of roofing throughout the premises. The plaintiff alleges she was unable to hold onto the hand railing due to the presence of bird droppings on the railing. The actual cause of the plaintiffs fall is in dispute, however the determination of cause is not pertinent in the instant motion.

         The plaintiffs filed suit against AVR KS Road Properties, LLC, Allan Rose, individually and d/b/a/ AVR Realty Company, The Lynd Company ("Lynd"), and JM1 Contractors LLC ("JMI"), as well as various insurance companies.[1] In their amended complaint, the plaintiffs allege AVR, as the owner of the premises, had a duty to ensure the safety of any and all walkways, stairs, stairways, and handrails for tenants and other persons using the common areas of the premises.[2] The plaintiffs allege AVR breached that duty by failing to clean up the roofing debris and the bird droppings that allegedly caused Ms. Benoit's fall. Importantly, the plaintiffs allege the duties of AVR arose directly and vicariously, and that the duties arise under Louisiana law and contractually by virtue of several contracts entered into by AVR that relate to the premises. In their amended complaint, the plaintiffs specifically allege their claims under Louisiana Civil Code articles 2315, [3] 2316, [4] 2317, [5] and 2322.[6]

         AVR denies all liability to the plaintiffs on grounds AVR owed Ms. Benoit no duty under the circumstances, because AVR is not liable for the negligent acts of its independent contractors, JMI and Lynd. AVR's motion does not address the plaintiffs' allegations that AVR is directly liable under the codal articles cited in the complaint, nor does it mention any potential duties that arise contractually by virtue of the various contracts AVR executed which relate to the premises.

         II. Summary Judgment Standard

         "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof" Fed. R. Civ. Proc. 56(b). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c).

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed. R. Civ. Proc. 56(e).
As the Fifth Circuit has pointed out:
This burden is not satisfied with 'some metaphysical doubt as to the material facts, ' by 'conclusory allegations, ' by 'unsubstantiated assertions, ' or by only a 'scintilla' of evidence. We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume (hat the nonmoving party could or would prove the necessary facts. ...[S]ummary judgment is appropriate in any case "where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)(citations omitted)(emphasis in original).

         In evaluating the evidence provided in support of, and in opposition to a Motion for Summary Judgment, "[t]he court must view facts and inferences in the light most favorable to the party opposing the motion." Hunt v. Rapides Healthcare Sys. LLC, 277 F.3d 757, 762 (5lh Cir, 2001), "A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the non-moving party, " Id. In evaluating evidence to determine whether a factual dispute exists, "[credibility determinations are not part of the summary judgment analysis." Id. To the contrary, " [i]n reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the non-moving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached" Roberts v. Cardinal Servs., 266 F, 3d 368, 373 (5th Cir. 2001) (emphases added).

         III. ...

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