Hebert v. St. Paul Fire and Marine Ins., 99-CA-0333.

CourtCourt of Appeal of Louisiana (US)
Citation757 So.2d 814
Docket NumberNo. 99-CA-0333.,99-CA-0333.
PartiesLisa Ballantin HEBERT v. ST. PAUL FIRE AND MARINE INSURANCE COMPANIES, New Orleans Track Club, Inc., and the Road Runners Club Of America.
Decision Date23 February 2000

757 So.2d 814

Lisa Ballantin HEBERT
v.
ST. PAUL FIRE AND MARINE INSURANCE COMPANIES, New Orleans Track Club, Inc., and the Road Runners Club Of America

No. 99-CA-0333.

Court of Appeal of Louisiana, Fourth Circuit.

February 23, 2000.


Leonard J. Cline, Jr., Metairie, Louisiana, Attorney for Plaintiff.

J. Michael Daly, Jr., Law Offices of Robert E. Birtel, Metairie, Louisiana, Attorney for Defendants.

757 So.2d 815
(Court composed of Chief Judge ROBERT J. KLEES, Judge MIRIAM G. WALTZER, Judge MOON LANDRIEU, Judge PATRICIA RIVET MURRAY and Judge JAMES F. McKAY, III)

KLEES, Chief Judge.

Plaintiff, Lisa Hebert, filed this suit against the New Orleans Track Club (hereinafter "NOTC") to recover damages for injuries she sustained when she stepped into a pothole during a road race sponsored by the NOTC. Plaintiff alleged that the NOTC was negligent in failing to remedy a dangerous condition on the racecourse and in failing to warn plaintiff of that condition. Defendant moved for summary judgment arguing that it did not have custody of the roadway and that plaintiff had signed a waiver of liability prior to the race. On November 3, 1998, the trial court granted defendant's motion for summary judgment, dismissing plaintiff's suit. Plaintiff now appeals.

In November of 1996, the NOTC paid $100 to obtain a permit from the City of New Orleans to sponsor the "Old Man River Half-Marathon" in Algiers, and the New Orleans Police Department provided traffic control for the race. Plaintiff paid a $12.00 entry fee to participate in the race, and she signed a waiver of liability wherein she waived any and all claims which could be brought against NOTC.

Generally, the NOTC conducts prerace inspections of the racecourses to place signs, cones, or barricades around any potentially hazardous conditions. In support of its motion for summary judgment, the NOTC submitted the deposition of Chuck George, the Executive Director of the NOTC, who stated that he inspected the roadway and did not notice any hazardous conditions on the racecourse. According to Mr. George, the runners were advised prior to the race to be aware of any defects along the racecourse. Soon after the race began, plaintiff tripped and fell as a result of a pothole along the racecourse, and she sustained scratches, contusions and a fractured kneecap.

The trial court rendered judgment on November 3, 1998, granting defendant's motion for summary judgment. The trial court stated in its reasons for judgment as follows:

The court is of the opinion that the injuries the plaintiff sustained though unfortunate, were not occasion [sic] by fault of the defendant.
The Court further believes that the requisite care, custody, and control of the street on which the accident took place, which would make the defendant liable, was not present. The defendants merely procured a permit from the city to sponsor this race and obtaining a permit to use the street does not rise to the level of custody or control over the street to constitute garde. Russell v. Bissell, 562 So.2d 1059 (La.App. 1st Cir. 1990).
Finally, the Court is of the opinion that the plaintiff, Lisa Hebert executed a valid waiver, waiving any and all claims that she might have had against the defendant NOTC.

Plaintiff now appeals from this summary judgment arguing that defendant had custody of the roadway and that the waiver executed by plaintiff is void and unenforceable pursuant to Louisiana law.

Standard of Review

In determining whether summary judgment is appropriate, appellate courts review the evidence de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. This standard of review requires the appellate court to look at "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," in making an independent determination that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.Proc. Ann. art. 966 B; Young v. Oberhelman, 607 So.2d 719 (La.App. 4th Cir.1992). In

757 So.2d 816
order to prevail on a motion for summary judgment, the movant must show "that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact." South Central Bell Telephone Co. v. Sewerage and Water Bd., 94-1648 & 94-1649, p. 2 (La.App. 4 Cir. 3/16/95), 652 So.2d 1090, 1093, writ denied, 95-0949 (La.5/19/95), 654 So.2d 1090. Both the evidence and all inferences drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in his favor. Id. Taking into account these standards, we find that summary judgment is proper in this case

Custody of the Roadway

Plaintiff asserts theories of liability based on La. C.C. arts. 2315, 2316 and 2317. La. Civ.Code art. 2317 imposes strict liability for damage caused by a defective thing in a defendant's custody. To hold defendant liable under article 2317, the plaintiff must prove: (1) the thing which caused the damage was in the care, custody and control of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm; and (3) the injuries were caused by this defect. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Article 2317 imposes liability based on custody, not ownership. Thumfart v. Lombard, 613 So.2d 286, 290 (La. App. 4th Cir.1993), writ denied, Montalbano v. Lombard, 617 So.2d 1182 (La.1993). Custody, distinct from ownership, refers to a person's supervision and control (garde) over a thing posing an unreasonable risk of harm. Id. (citing Loescher v. Parr, 324 So.2d 441, 446 (La.1975)). The Supreme Court has utilized a two-part test in determining whether the defendant has custody sufficient to impose article 2317 liability. First, the defendant must have right of direction and control over the thing. Second, the court must examine what, if any, kind of benefit the defendant derives from the thing. Doughty v. Insured Lloyds Ins. Co., 576...

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    ...appellate courts review the evidence de novo ." Hebert v. St. Paul Fire & Marine Ins. Co. , 99-0333, p. 3 (La. App. 4 Cir. 2/23/00), 757 So.2d 814, 815. The de novo process requires this Court to utilize "the same criteria that govern the trial court's consideration of whether summary judgm......
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