Ladner v. Trinity Group, Ltd.

57 So. 3d 1197, 2011 La. App. LEXIS 205, 2011 WL 525903
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2011
DocketNo. 45,937-CA
StatusPublished
Cited by8 cases

This text of 57 So. 3d 1197 (Ladner v. Trinity Group, Ltd.) 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
Ladner v. Trinity Group, Ltd., 57 So. 3d 1197, 2011 La. App. LEXIS 205, 2011 WL 525903 (La. Ct. App. 2011).

Opinion

DREW, J.

It Geneveive and Mike Ladner appeal a judgment granting a motion for summary judgment and dismissing their personal injury claims.

We affirm.

FACTS

On October 18, 2005, James and Sarah Price, husband and wife, purchased two adjoining tracts located in Shreveport for $425,000. The larger tract, covering 4.263 acres, was bordered by Pines Road to the west and Jefferson Paige Road to the north. The smaller tract, covering 2.42 acres, was to the south of the larger tract along Pines Road. An abandoned barbeque restaurant was located on the larger tract at the corner of Pines and Jefferson Paige Roads. A small pond was located behind the restaurant.

Mike Ladner and his wife, Geneveive Ladner, lived on property adjacent to the east border of the Prices’ property. They had moved onto the property in 2005. The Ladners also operated a business there.

After midnight on March 15, 2007, Gene-veive Ladner went onto the Prices’ property to look at a car that had been driven into the pond located on the property. She was accompanied by her German Shepherd which weighed 120 pounds. When Geneveive Ladner attempted to tie the dog’s leash to a metal pipe sticking out of the ground on the Prices’ land, the dog struggled and apparently caused part of the pipe to fall and hit Geneveive Ladner’s right hand.

The Ladners filed suit against Trinity Group, Ltd., then later added the Prices as defendants.1 They alleged that the pipe was actually a rusty |2water pump that sat atop a dilapidated water well. They further alleged that Geneveive Ladner had sustained severe injuries to her right hand requiring numerous surgeries and leading to loss of use of that hand.

The Prices filed a motion for summary judgment in which they contended that the Ladners had no evidence that there was any defect in the pipe or in the alleged pump or water well that allegedly injured Geneveive Ladner, and, if such defect existed, that it presented an unreasonable risk of harm to her. They further contended that the Ladners could not prove the Prices had actual or constructive knowledge of any defect in the pipe or alleged pump or water well. In support of their motion, the Prices submitted their own affidavits and excerpts from the Lad-ners’ depositions.

[1199]*1199The Ladners opposed the motion with James Prices’ deposition and an affidavit2 from their expert, Robert Borison. Bori-son stated in his affidavit that he is president of Total Safety Services, which investigates accidents and performs safety consultations. He added that he has over 40 years of experience in the fields of safety management, safety regulations and standards, and accident investigation, with an emphasis on applications and operations involving pipes, pumps, wellhead structures, and access control. Borison opined that the direct cause of the accident was the Prices’ failure to abate the unreasonably dangerous condition presented by the metal structure or artifact that struck Geneveive Ladner. He stated that [ ¡¡regardless of whether the structure or artifact was actually part of a water well hand pump, it was dangerous because it was unstable and subject to falling on a person and causing injury. He concluded that the structure or artifact served no identifiable useful purpose at the time of the accident, and it should have been removed, enclosed in a barricade or structure, or, at the very least, had its condition made more apparent through the use of signs warning of its location and potential danger.

The trial court granted the motion for summary judgment after determining there was no genuine issue of material fact that the Prices had actual or constructive knowledge of a defect on their property.

DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; ie., whether there is any genuine issue of material 'fact, and whether the movant is entitled to judgment as a matter of law. Id.

A motion for summary judgment will be granted 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. C.C.P. art. 966(B).

I/The burden of proof on a motion for summary judgment is set forth' in La. C.C.P. art. 966(C)(2):

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.

[1200]*1200This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058. At that point, the party who bears the burden of persuasion at trial, usually the plaintiff, must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, supra.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049.

Is An individual is responsible for the damage caused by things in his custody. La. C.C. art. 2317. The owner or custodian of a thing is answerable for damage caused by its defect only upon a showing that he knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care, and that he failed to exercise such care. La. C.C. art. 2317.1. Thus, to recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir.7/14/04), 878 So.2d 889, writ denied, 04-2310 (La.1/14/05), 889 So.2d 266.

James Price thought that Geneveive Ladner’s accident occurred on the larger tract.

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Cite This Page — Counsel Stack

Bluebook (online)
57 So. 3d 1197, 2011 La. App. LEXIS 205, 2011 WL 525903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ladner-v-trinity-group-ltd-lactapp-2011.