APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 758-964, DIVISION
"E" HONORABLE JOHN J. MOLAISON, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, KIM FACIANE Darleen M.
COUNSEL FOR DEFENDANT/APPELLEE, GOLDEN KEY DIVISION LIMITED
PARTNERSHIP AND OHIO MANAGEMENT, L.L.C. Jefferson R. Tillery
Jeanne L. Amy
COUNSEL FOR DEFENDANT/APPELLEE, ALLIED WORLD ASSURANCE
COMPANY, INC. James W. Hailey, III James V. King, III
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Stephen J. Windhorst
STEPHEN J. WINDHORST JUDGE.
Kim Faciane, appeals the trial court's September 25, 2017
grant of summary judgment in favor of appellees/defendants,
Golden Key Division Limited Partnership, formerly known as
Creekwood Golden Key Limited Partnership ("Golden
Key"), Ohio Management, L.L.C. ("Ohio
Management"), and Allied World Assurance Company (US),
Inc. ("AWAC"), and dismissing Ms. Faciane's
case with prejudice. For the reasons that follow, we reverse
the trial court's September 25, 2017 summary judgment and
remand for further proceedings.
and Procedural History
Faciane resided at the Golden Key Apartments, apartment
number 327, located at 4209 Division Street from November 9,
2013 until she moved out in May 2014. On March 16, 2016, Ms.
Faciane filed suit against defendants/lessors, Golden Key
(owner of the apartment complex) and Ohio Management (manager
of the apartment complex) and Ohio Management's insurer,
AWAC. Ms. Faciane argued that on April 14, 2015, while she
was sleeping in her apartment, sheetrock fell from the
apartment's ceiling due to a leak in the ceiling. In her
petition, she claimed that "sheet rock fell from the
apartment's ceiling, striking [her] on her left leg and
body and causing her to slip down on floor thereby wetted by
rain water [sic] injuring her neck and back."
Ms. Faciane contended that defendants were liable for
allowing their apartments to remain in disrepair, failing to
properly repair the ceiling after being informed that it was
leaking, failing to properly maintain the apartments and
failing to institute proper inspection procedures to ensure
repairs in her apartment were properly made.
August 18, 2017, defendants, Golden Key and Ohio Management,
filed a motion for summary judgment arguing that the lease
agreement between defendants and Ms. Faciane contained a
provision requiring Ms. Faciane to hold defendants harmless
for any personal injury or property claims. Defendants
claimed that pursuant to La. R.S. 9:3221, Ms. Faciane assumed
responsibility for the condition of the premises, including
the roof of the apartment, except in case of defendants'
neglect or failure to take action to remedy such defect after
lessee's written notification of the
defect. Defendants further argued that they were
not informed of any defect with Ms. Faciane's
ceiling/roof until after the alleged accident
occurred. Defendants contended that because they did not have
actual or constructive knowledge of the defect in the roof,
as required under the terms of the lease, they were entitled
to summary judgment because they could not be held liable for
Ms. Faciane's damages. On August 24, 2017, AWAC, as the
insurer of Ohio Management, filed a motion to adopt the
motion for summary judgment filed by Golden Key and Ohio
Faciane filed an opposition arguing that several genuine
issues of material fact existed precluding summary
judgment. She argued that defendants admitted that
there were at least two instances of prior notice of a hole
in her apartment ceiling. Ms. Faciane contended that the only
evidence of an alleged repair was her testimony that
defendants only sprayed paint over the hole, not that
defendants repaired the hole. She stated that after the
initial attempted repair, she called the manager and told her
that the ceiling had not been adequately fixed. Ms. Faciane
further told the manager that the technician sprayed the
"popcorn substance on her furniture." Ms. Faciane
claimed that there was no proof that defendants performed
inspections and/or adequately inspected their premises.
Moreover, she argued that there was evidence of prior notice
of the defective condition. Ms. Faciane stated that
defendants were liable for her damages under both negligence
and strict liability theories. Therefore, she contended that
defendants were not entitled to summary judgment.
September 25, 2017, the trial court granted the motions for
summary judgment in favor of defendants and against Ms.
Faciane, dismissing her case with prejudice. This appeal
courts review the granting of a summary judgment de
novo using the same criteria governing the trial
court's consideration of whether summary judgment is
appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363
(La. 11/29/06), 950 So.2d 544, 547. Summary judgment shall be
granted if the motion, memorandum, and supporting documents
show that there is no genuine issue ...