Biggs v. Cancienne

111 So. 3d 6, 2012 La.App. 1 Cir. 0187, 2012 WL 4320247, 2012 La. App. LEXIS 1179
CourtLouisiana Court of Appeal
DecidedSeptember 21, 2012
DocketNo. 2012 CA 0187
StatusPublished
Cited by4 cases

This text of 111 So. 3d 6 (Biggs v. Cancienne) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Biggs v. Cancienne, 111 So. 3d 6, 2012 La.App. 1 Cir. 0187, 2012 WL 4320247, 2012 La. App. LEXIS 1179 (La. Ct. App. 2012).

Opinion

GAIDRY, J.

12This appeal is from a summary judgment dismissing the claims of a lessee in her suit for damages caused by a defect in the leased premises. We reverse.

FACTS AND PROCEDURAL HISTORY

On September 1, 2008, at the time Hurricane Gustav passed over the Baton Rouge area, Angelia Biggs was living in an apartment located in Baker, Louisiana, which was owned by Kathy Cancienne. The parties’ lease agreement contained the following waiver:

NON-LIABILITY OF LANDLORD—
Tenant agrees that Landlord shall not be liable for injury or damage to person [8]*8or property of Tenant, his family, guests, employees or invitees, occurring in, on or about the leased premises, or occurring anywhere in or on the apartment building or area in which the leased premises are located, or in or upon the grounds in which the apartment building or house is located, or in any other building or structure on said grounds, however caused or arising except by the direct negligence of Landlord, his agents or employees, and agrees to indemnify and hold Landlord harmless therefor.
Landlord will not be responsible for damage caused by leaks in the roof, by bursting pipes, by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, nor will Landlord be liable in damages for injury caused by any vices or defects of the leased property to Tenant, or any tenant or occupant, or to anyone in the building or on the premises, except in case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having written notice from Tenant of such defects and the damage caused thereby. Should Tenant fail to so notify Landlord promptly, in writing, of such defects, Tenant will' become responsible for any damage or injury resulting to Landlord or other parties.

The leased premises sustained roof damage during Hurricane Gustav. Ms. Biggs alleges that within a few hours of Hurricane Gustav passing over the area on September 1, the ceiling in her apartment began to leak and that she notified the apartment manager, Robert Williston, of the leak. In the middle of the night on September 2, 2008, a piece of the sheet-rock ceiling in |sMs. Biggs’ apartment fell, followed by another piece several hours later. That afternoon, Mr. Williston went out to the apartments to survey the damage. He had to move a tree downed by the storm in order to get to the apartments. Once there, he placed some felt paper that he had on hand on the damaged portions of the roof. At that time, he inspected all of the apartments, including Ms. Biggs’ apartment, and saw that some sheetrock had fallen. It did not appear to Mr. Williston at that time that any of the remaining sheetrock was waterlogged, damaged, or in danger of falling. Ms. Biggs alleges that she asked Mr. Williston whether she should vacate the premises, and Mr. Williston responded that that was unnecessary. On September 3, Mr. Willi-ston returned to the apartment building to re-secure some of the felt paper which had become loose during the continued wind and rain that followed the hurricane. Ms. Biggs alleges that Mr. Williston told her at that time that he could begin working on the ceiling on September 5. However, on September 4, a piece of the sheetrock ceiling in the kitchen of Ms. Biggs’ apartment fell, striking her on the head and shoulders and allegedly causing injury. Upon hearing of the accident, Mr. Williston went to the apartment, cleaned up debris from the fallen ceiling, and secured a piece of sheet-rock which was hanging from the ceiling with a two-by-four. At the time of the accident, electricity had not yet been restored and stores were not yet open in the area.

Ms. Biggs filed suit on September 3, 2009 against Ms. Cancienne, Mr. Williston, and Ms. Cancienne’s insurer, First Financial Insurance Company, for the injuries she allegedly sustained when the sheetrock fell on her. Defendants filed a motion for summary judgment, alleging that under the circumstances, with no electricity or supplies within a few days of Hurricane Gustav, there had not been a reasonable amount of time for repairs to have |4been [9]*9made before the accident occurred. The trial court agreed that under the circumstances surrounding the hurricane, the lessor had not had a reasonable amount of time within which to remedy the defect when the accident occurred. The court granted summary judgment in favor of the defendants, dismissing Ms. Biggs’ petition, and this appeal by Ms. Biggs followed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B) (prior to amendment by 2012 La. Acts No. 257). In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Fernandez v. Hebert, 06-1558, p. 8 (La.App. 1 Cir. 5/4/07), 961 So.2d 404, 408, writ denied, 07-1123 (La.9/21/07), 964 So.2d 333. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 05-1233, p. 5 (La.App. 1 Cir. 6/9/06), 938 So.2d 766, 769. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Fernandez, 06-1558 at 8, 961 So.2d at 408. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

|,Jn determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

A lessor warrants his lessee that the leased premises are suitable for the purpose for which they are leased and that they are free of vices and defects which prevent their use for that purpose; this warranty also extends to any vices or defects which arise after the delivery of the premises which are not attributable to the fault of the lessee. La. C.C. art. 2696. This warranty against vices and defects in the leased premises also encompasses vices and defects which are not known to the lessor; however, if the lessee knows of the vices or defects and fails to notify the lessor, the lessee’s recovery for breach of warranty may be reduced accordingly. La. C.C. art. 2697.

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Cite This Page — Counsel Stack

Bluebook (online)
111 So. 3d 6, 2012 La.App. 1 Cir. 0187, 2012 WL 4320247, 2012 La. App. LEXIS 1179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biggs-v-cancienne-lactapp-2012.