United States District Court, W.D. Louisiana, Monroe Division
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.
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”) 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.
& PROCEDURAL HISTORY
September 15, 2016, Busby filed the instant lawsuit against
Roadhouse and XYZ Insurance Company 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.
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
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.
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).
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
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.
Summary Judgment as to Roadhouse's
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.
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.
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.
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.
Garde over the Rebar and/or the Grassy Area
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.
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.
Contracts Between Roadhouse and the City
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 ...