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Busby v. Texas Roadhouse Holding, L.L.C.

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

December 20, 2019


          PEREZ-MONTES Judge.



         This case arises out of a claim for damages based on premises liability brought by Plaintiff Cassadee Busby (“Busby”) against Defendants Texas Roadhouse Holdings, L.L.C. and Texas Roadhouse, Inc. (together, “Roadhouse”). Roadhouse filed a third-party complaint against Random Property Investments, L.L.C. (“RPI”)[1] and the City of West Monroe (“the City”). [Record Document 16]. Busby then amended her complaint to include RPI and the City as Defendants. [Record Document 32]. Now before the Court is the City's Motion for Summary Judgment [Record Document 61], seeking dismissal of the third-party complaint and the amended complaint. The motion is opposed by both Roadhouse and Busby. [Record Documents 63 & 64]. For the reasons discussed below, the motion for summary judgment is GRANTED.


         On September 15, 2016, Busby filed the instant lawsuit against Roadhouse and XYZ Insurance Company[2] in the Fourth Judicial District Court for the Parish of Ouachita, Louisiana. Record Document 1-2, p. 2. Busby alleges that on October 9, 2015, she was seriously injured when she encountered a piece of rebar protruding from the ground on the premises of Roadhouse. Id. at ¶s 3-4. Busby claims that this rebar constituted a defective condition that Roadhouse either created, knew about, or should have known about. Id. at ¶ 5. Roadhouse timely removed the case to this Court on October 20, 2016. Record Document 1.

         More than a year later, on October 27, 2017, Roadhouse filed a third-party complaint against RPI and the City. Record Document 16. The complaint alleges that the rebar Busby encountered was located on a fifty-foot-wide strip of land that was subject to a servitude granted by Roadhouse to RPI. Id. at ¶ 8. This servitude ran across the northern boundary of Roadhouse's property and was established so that RPI could build an extension of a road called Basic Drive (hereinafter, “Basic Drive Expansion”). Id. The servitude was established in an agreement between Roadhouse, RPI, and the City. Id. at ¶s 8-9. The agreement provided that after the Basic Drive Expansion was completed, Roadhouse would dedicate the area previously covered by the servitude to the City as a public right of way. Id. at ¶ 9. In early October of 2015, Roadhouse and the City entered into an agreement in which the City accepted the dedication and granted Roadhouse a predial servitude for ingress, egress, and parking over a portion of the property that was dedicated to the City. Record Document 61-4, pp. 39-40 & 42-43. This portion of the property subject to the predial servitude is referred to as the Roadhouse Protected Area. Id. at 40. It is undisputed that Busby encountered the rebar when she was walking across a grassy area in the middle of the Roadhouse parking lot that was located within the Roadhouse Protected Area. See Record Document 64-1, ¶ 1, Roadhouse's Statement of Disputed Material Facts (“The exact location where Busby's incident occurred was on property . . . subject to a predial servitude in favor of Roadhouse . . . .”). Roadhouse alleges that the rebar was either left by RPI when it was constructing the Basic Drive Expansion or left by the City when it constructed two cast iron utility pipes in the area of the servitude. Record Document 16, ¶ 14. Roadhouse claims that if it is held liable to Busby, the City is obligated to indemnify it for any damages, expenses, and attorney's fees that may be awarded. Id. at ¶s 15-16.

         On July 25, 2018, Busby amended her complaint to include RPI and the City as Defendants. Record Document 32. The factual and legal allegations of her complaint remained the same. Id.; Record Document 1. On September 17, 2019, the City filed the instant motion for summary judgment requesting the dismissal of Busby's amended complaint and Roadhouse's third-party complaint. Record Document 61.


         Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Summary judgment is appropriate when the pleadings, answers to interrogatories, admissions, depositions, and affidavits on file indicate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial will rest on the non-moving party, the moving party need not produce evidence to negate the elements of the non-moving party's case; rather, it need only point out the absence of supporting evidence. See Id. at 322-23. However, “if the movant bears the burden of proof on an issue, . . . he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).

         If the movant satisfies its initial burden of showing that there is no genuine dispute of material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue for trial by going “beyond the pleadings” and “designat[ing] specific facts” for support. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 325). “This burden is not satisfied with some metaphysical doubt as to the material facts, ” by conclusory or unsubstantiated allegations, or by a mere “scintilla of evidence.” Id. (internal quotation marks and citations omitted). However, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1985) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). While not weighing the evidence or evaluating the credibility of witnesses, courts should grant summary judgment where the critical evidence in support of the nonmovant is so “weak or tenuous” that it could not support a judgment in the nonmovant's favor. Armstrong v. City of Dall., 997 F.2d 62, 67 (5th Cir. 1993).

         Additionally, Local Rule 56.1 requires the movant to file a statement of material facts as to which it “contends there is no genuine issue to be tried.” The opposing party must then set forth a “short and concise statement of the material facts as to which there exists a genuine issue to be tried.” W.D. La. R. 56.2. All material facts set forth in the movant's statement “will be deemed admitted, for purposes of the motion, unless controverted as required by this rule.” Id.

         LAW & ANALYSIS

         I. Summary Judgment as to Roadhouse's Claims

         Roadhouse alleges that the rebar Busby encountered was left behind by the City after it constructed two cast iron utility pipes in the grassy area and that the City had custody or “garde” over those utility pipes. Record Document 16, ¶s 12 & 14. The Court interprets these statements to mean that Roadhouse contends that the City is the party that should be held liable to Busby for premises liability. Alternatively, Roadhouse asserts that if it is cast in judgment to Busby, the City should be liable to it for “full and complete tort indemnity” for creating the ruin, vice, defect, and/or condition that injured Busby. Id. at ¶ 15.

         In its motion for summary judgment, the City argues that the undisputed material facts of this case show that neither Busby nor Roadhouse have brought an actionable premises liability claim against it and that it does not owe any indemnity to Roadhouse. Record Document 61-2, p. 5.

         A. Premises Liability

         Article 2317 of the Louisiana Civil Code provides that individuals are responsible “not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” La. Civ. Code art. 2317. Article 2317.1 goes on to say that

The 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 known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Id. at 2317.1. Premises liability claims against public bodies such as the City are also subject to the requirements of Louisiana Revised Statute § 9:2800(C), which requires that “the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.” La. Stat. Ann. § 9:2800(C). To show that the City is liable to Busby for her injuries, Roadhouse and Busby must show that (1) the rebar, or the grassy area that contained the rebar, was in the City's custody; (2) the rebar created an unreasonable risk of harm; (3) the City had actual or constructive notice of the rebar, yet did not take corrective action within a reasonable time period; and (4) the rebar was the cause-in-fact of Busby's harm. Breitling v. City of Shreveport, 44, 112 (La.App. 2 Cir. 5/13/09); 12 So.3d 457, 459.

         The City asserts that any premises liability claims against it must fail for two reasons. First, the City claims that neither Busby nor Roadhouse can demonstrate that it had custody, also known as garde, over the rebar or the grassy area. Record Document 61-2, p.10. Second, the City asserts neither Busby nor Roadhouse will be able to show that it had any prior notice of the rebar's presence in the grassy area. Id. Both of those elements must be proven in order to succeed on a premises liability claim against a public entity. Breitling, 12 So.3d at 459.

         1. Garde over the Rebar and/or the Grassy Area

         The City became the owner of the alleged incident site when it accepted Roadhouse's dedication of the property in early October of 2015. See Record Document 61-4, pp. 39 & 42. Ownership creates the presumption of garde. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La. 1991). However, this presumption may be rebutted. Id. “To find otherwise would rewrite article 2317 to impose strict liability for the ‘ownership' of a defective thing rather than liability arising out of ‘custody' of the thing.” Id. Because the concept of garde is broader than ownership, more than one party may have custody or garde over a thing under article 2317. Dupree v. City of New Orleans, 1999-3651 (La. 8/31/00); 765 So.2d 1002, 1009.

         When determining whether a party has garde over a thing, Louisiana courts consider two guiding principles: “(1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing.” Id. A party who has the legal duty to prevent a thing's vice or defect from harming another is a party that has garde over that thing. Id. One way to rebut the presumption that an owner has garde over its property is by “establishing a contractual undertaking by another to maintain and control the property.” Gallina v. Hero Lands Co., 2003-0331 (La.App. 4 Cir. 10/7/03); 859 So.2d 758, 762. “[C]ourts have recognized that a servitude holder does not have custody or garde absent either a right of dominion or some contractual responsibility for the surface of the servitude.” Id. To determine whether the City had garde over the grassy area, the Court begins by examining two agreements between Roadhouse and the City.

         i. Contracts Between Roadhouse and the City

         In June of 2015, RPI, Roadhouse, and the City entered into an agreement entitled “Agreement for Reciprocal Acts.” See Record Document 61-4, pp. 12-20. In this document, Roadhouse agreed to dedicate the portion of its property covered by the Basic Drive Expansion to the City as a constructed roadway for public use. Id. at 14. This portion of land is referred to as the “Roadhouse Dedicated Property.” Id. Within the Roadhouse Dedicated Property, the parties ...

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