Davis v. Country Living Mobile Homes, Inc.

76 So. 3d 1248, 11 La.App. 3 Cir. 471, 2011 La. App. LEXIS 1227, 2011 WL 4949018
CourtLouisiana Court of Appeal
DecidedOctober 19, 2011
DocketNo. 11-471
StatusPublished
Cited by3 cases

This text of 76 So. 3d 1248 (Davis v. Country Living Mobile Homes, Inc.) 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
Davis v. Country Living Mobile Homes, Inc., 76 So. 3d 1248, 11 La.App. 3 Cir. 471, 2011 La. App. LEXIS 1227, 2011 WL 4949018 (La. Ct. App. 2011).

Opinions

SAUNDERS, Judge.

11 This is a slip and fall case where a patron of a mobile home vendor fell due to an allegedly muddy area on the mobile home vendor’s sales lot. The patron filed suit seeking to recover for injuries resulting from her fall. The trial court granted the defendant, the mobile home vendor, [1249]*1249summary judgment. The plaintiff now appeals. We affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Joyce Marie Davis (hereinafter “Davis”), and her husband visited defendant’s mobile home sales lot in DeR-idder, Louisiana, on June 28, 2005, where she slipped and fell. Subsequently, Davis filed suit against defendant Country Living Mobile Homes, Inc. (hereinafter “Country Living”) alleging its negligence as the cause of her slip and fall. Country Living later filed a motion for summary judgment. The trial court granted the motion in favor of Country Living. Davis filed a motion for a new trial, which the trial court denied. Davis now appeals, asserting that summary judgment against her was not warranted and that Country Living did not meet its initial burden as mov-ant of the motion for summary judgment.

ASSIGNMENTS OF ERROR

1. Whether the trial court erred in granting summary judgment and ruling that there was no genuine issue of material fact and that defendant was entitled to judgment as a matter of law on the issue of whether the slippery patch of mud on which plaintiff fell constituted an unreasonable risk of harm.
2. Whether the trial court erred in granting summary judgment and ruling that defendant was entitled to judgment as a matter of law regarding whether there was actual or constructive notice of the defect by the 1 ^defendant, or alternatively whether the defendant’s agents created the defect.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In her first assignment of error, Davis contends that the trial court erred as a matter of law in ruling that there was no genuine issue of material fact and that defendant was entitled to judgment as a matter of law on the issue of whether the slippery patch of mud on which plaintiff fell constituted an unreasonable risk of harm. In her second assignment of error, Davis contends that the trial court erred by granting summary judgment and ruling that defendant was entitled to judgment as a matter of law regarding whether there was actual or constructive notice of the defect by the defendant, or alternatively whether the defendant’s agents created the defect. Because both assignments of error are directed toward the trial court’s granting summary judgment as to two elements of the same claim, we will address whether the trial court properly granted Country Living’s motion for summary judgment under one heading.

Summary judgments are subject to a de novo review. Thibodeaux v. Lafayette Gen. Surgical Hosp., 09-1528 (La.App. 8 Cir. 5/5/10), 38 So.3d 544. “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

pit is also important to be aware of the movant’s and not-movant’s burdens of proof. Though the burden of proof on a motion for summary judgment remains on the movant, the movant’s burden changes contingent upon whether he or she will [1250]*1250bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment. Johnson v. State Farm Ins., 08-1250 (La.App. 3 Cir. 4/1/09), 8 So.3d 808.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

In this case, Davis filed suit against Country Living, alleging that the company was negligent in allowing a muddy spot to form and remain on its property, which Davis contends resulted in her fall. Davis has the burden to prove this at trial. Bias v. Scottsdale Ins. Co., 10-378 (La.App. 3 Cir. 11/10/10), 50 So.3d 964. Thus, Country Living, as movant of the motion for summary judgment, does not bear the burden of negating all essential elements of Davis’s claim. La.Code Civ.P. art. 966(C)(2). Rather, Country Living need only “point out a lack of support for an essential element” of Davis’s claim. Id. Thereafter, the burden shifts to Davis to show some support that she can meet her evidentiary burden on that element. Id. If she cannot meet the burden, there is no genuine issue of material fact, and the motion for summary judgment should be granted. Id.

[4The law providing the elements which Davis must prove at trial is as follows:

We 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. This, however, is to be understood with the following modifications.

La.Civ.Code art. 2317.

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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

La.Civ.Code art. 2317.1.

In summary, in order to recover for damages for premises liability, a plaintiff must prove: (1) the thing was in defendant’s custody and control; (2) the thing contained a defect which presented an unreasonable risk of harm to others; and (3) the defendant knew or should have known of the defect. Bias, 50 So.3d 964.

In this case, Country Living based its motion for summary judgment on two assertions: that Davis is unable to bear the burden of proof to show the required notice, or Country Living’s awareness of the purported defect, and that Davis is unable to show that the mud on the grassy land is a defect that constitutes an unreasonable risk of harm under Louisiana law.

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Bluebook (online)
76 So. 3d 1248, 11 La.App. 3 Cir. 471, 2011 La. App. LEXIS 1227, 2011 WL 4949018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-country-living-mobile-homes-inc-lactapp-2011.