United States District Court, W.D. Louisiana, Lafayette Division
CAROLYN D. BENOIT, ET AL.
INT'L INS. CO. OF HANOVER, SE, ET AL.
WHITEHURST MAGISTRATE JUDGE.
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.
Factual and Procedural Background
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.
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. 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. 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,  2316,  2317,  and 2322.
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.
Summary Judgment Standard
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
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)