Breaux v. Fresh Start Props., L.L.C.

• Decision Date: 29 November 2011
• Docket Number: No. 11–CA–262.,11–CA–262.
• Citation: 78 So.3d 849
• Parties: Richard W. BREAUX v. FRESH START PROPERTIES, L.L.C. and State Farm Fire and Casualty Co.
• Court: Court of Appeal of Louisiana — District of US

78 So.3d 849

Richard W. BREAUX
v.
FRESH START PROPERTIES, L.L.C. and State Farm Fire and Casualty Co.

No. 11–CA–262.

Court of Appeal of Louisiana, Fifth Circuit.

Nov. 29, 2011.

[78 So.3d 851]

Daryl A. Higgins, A. Mark Flake, Attorneys at Law, Gretna, LA, for Plaintiff/Appellant.

Frederick A. Miller & Associates, Marianne S. Pensa, Attorneys at Law, Metairie, LA, for Defendants/Appellees.

Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.

MARC E. JOHNSON, Judge.

[5 Cir. 2] Plaintiff, Richard Breaux, appeals the granting of summary judgment in favor of defendants, Fresh Start Properties, LLC (“Fresh Start”) and State Farm Fire and Casualty Co., dismissing his suit for personal injuries allegedly sustained while he was working as an electrician on Fresh Start's property. For the reasons that follow, we affirm.

Plaintiff filed suit asserting he injured his right knee on July 1, 2007 while performing electrical work at 428 9th Street in Gretna, property which was owned by Fresh Start. He alleged that his electrical work required attic access and, as he was going up the attic stairs, the third step snapped causing him to fall. He maintained Fresh Start was liable for his injury under the theories of negligence and strict liability.

Plaintiff subsequently filed a motion for partial summary judgment on the issue of liability. He argued his injury was caused by an unreasonably dangerous defect in the attic stairs and, thus, Fresh Start was liable under La. C.C. arts. 2317.1 and 2322. Defendants responded by filing their own motion for summary [5 Cir. 3] judgment in which they asserted the attic stairs did not present an unreasonable risk of harm, Fresh Start did not owe a duty to warn or protect plaintiff from the risk of harm, and plaintiff could not meet his burden of proof that Fresh Start knew or should have known of a defect in the attic stairs.

After a hearing, the trial court denied plaintiff's motion for partial summary judgment and granted defendants' motion for summary judgment dismissing plaintiff's suit with prejudice. Plaintiff filed the instant appeal challenging the trial court's granting of summary judgment in favor of defendants.

A motion for summary judgment should be granted only if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements

[78 So.3d 852]

essential to the adverse party's claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07–580 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La. C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08–1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09–1187 (La.9/18/09), 17 So.3d 975. Even though the summary judgment procedure is favored, it is not a substitute for a [5 Cir. 4] trial on the merits. S.J. v. Lafayette Parish School Bd., 06–2862 (La.6/29/07), 959 So.2d 884, 887 ( per curiam ).

A material fact is one that potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04–806 (La.6/25/04), 876 So.2d 764, 765 ( per curiam ). A genuine issue is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93–2512 (La.7/5/94), 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07–376 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414. “In determining whether an issue is ‘genuine,’ courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 93–2512 at 27; 639 So.2d at 751.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court's consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08–339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

Louisiana Civil Code articles 2315 and 2316 are the codal foundation for delictual liability for negligence in Louisiana. La. C.C. arts. 2317 and 2317.1 define the basis for delictual liability for defective things, and La. C.C. art. 2322 defines the basis for delictual liability for buildings.

[5 Cir. 5] A plaintiff alleging negligence or strict liability of a building owner must prove: (1) the property presented an unreasonable risk of harm; (2) the defendant knew or should have known of the vice or defect; and (3) the damage could have been prevented by the exercise of reasonable care and the defendant failed to exercise such reasonable care. If the plaintiff fails to prove any one of these elements, his claim fails. Meaux v. Wendy's International, Inc., 10–111 (La.App. 5 Cir. 10/26/10), 51...