Walker v. Holt

888 So. 2d 255, 3 La.App. 3 Cir. 1722, 2004 La. App. LEXIS 2324, 2004 WL 2180993
CourtLouisiana Court of Appeal
DecidedSeptember 29, 2004
DocketNo. 03-1722
StatusPublished
Cited by3 cases

This text of 888 So. 2d 255 (Walker v. Holt) 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
Walker v. Holt, 888 So. 2d 255, 3 La.App. 3 Cir. 1722, 2004 La. App. LEXIS 2324, 2004 WL 2180993 (La. Ct. App. 2004).

Opinion

|, SULLIVAN, Judge.

Zurich North America Insurance Company (Zurich) appeals the grant of summary judgment in favor of Elizabeth Smith Distefano a/k/a Elizabeth Matney, Anita Smith Campo a/k/a Anita Smith Campo Brewer, Graham L. Smith, Jr., and Allstate Insurance Company. We affirm.

Background

Frederick Walker injured his back when he stepped in a hole while delivering gas for his employer, Herring Gas Company (Herring), to the residence of Kathy and Bobby Holt. Ms. Holt, Ms. Distefano, Ms. Campo, and Mr. Smith, Jr. are siblings. Pursuant to a Judgment of Possession in their mother’s succession dated December 20, 1978, they are the naked owners of an undivided one-twelfth interest in the Holt residence. Graham L. Smith, Sr., their father, owns an undivided one-half interest in the property and is the usufructuary of the other one-half interest in the property.

Mr. Walker and his wife filed suit against the Holts, Ms. Distefano, Ms. Cam-po, Mr. Smith, Jr., Emile Ferdinand Smith, another sibling, and Mr. Smith, Sr. to recover damages resulting from his injury. Zurich, Herring’s workers’ compensation insurer, filed suit against the same parties to recover amounts it paid to Mr. Walker in indemnity benefits and medical expenses. The two suits were consolidated.

After conducting discovery, Ms. Distefano, Ms. Campo, and Mr. Smith, Jr. filed motions for summary judgment. Initially, the trial court denied the motion, but after a hearing on a motion to reconsider the motion for summary judgment, the trial court granted judgment in favor of Ms. Distefano, Ms. Campo, and Mr. Smith, Jr. |2Zurich and the Walkers appealed. This court dismissed the Walkers’ appeal because they did not timely file a brief.

Motion for Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). The mover is entitled to judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting affidavits, if any, show there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

The initial burden of proof is on the mover to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). However, if the mover will not [257]*257bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, he is not required to negate all essential elements of his opponent’s claim but need only point out that there is an absence of factual support for one or more elements essential to his opponent’s action. If the opponent 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. Id.

Discussion

In their motions for summary judgment, 'Ms. Distefano, Ms. Campo, and Mr. Smith, Jr. assert that they had no knowledge of the alleged defects in property where Mr. Walker was injured and that they do not oversee the management of that property. Their motions for summary judgment were premised on La.Civ.Code art. 2317.1 which provides:

|3The 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.

Ms. Distefano and Ms. Campo asserted that they did not oversee management of the Holt residence and that they had no knowledge of defects on the property. Mr. Smith, Jr. asserted that he did not have, nor should have had, knowledge of any defects on the property. Zurich opposed the motions asserting that as owners these defendants knew or should have known of the hole because they had a duty to inspect and discover such a defect in the property.

After the hearing on the motions for summary judgment, the trial court concluded' that a genuine issue of material fact existed as to whether Ms. Distefano, Ms. Campo, and Mr. Smith, Jr. “knew or in the exercise of reasonable care should have known of the alleged ruin, vice, or defect, which Mr. Walker claims caused his injuries” and that a jury should make the determination of whether or not they did. These defendants then filed a motion for new trial/motion to reconsider.

After arguments on the motion for new trial/motion to reconsider, the trial court found the hole in the Holts’ yard to be an ordinary repair within the meaning of La. Civ.Code arts. 577 and 578. Article 577 provides:

The usufructuary is responsible for ordinary maintenance and repairs for keeping the property subject to the usu-fruct in good order, whether the need for these repairs arises from accident, from the normal use of the things, or from his fault or neglect.
The naked owner is responsible for 'extraordinary repairs, unless they have become necessary as a result of the usu-fructuary’s fault or neglect in which case the usufructuary is bound to make them at his cost.
UArticle 578 provides:
Extraordinary repairs are those for the reconstruction of the whole or of a substantial part of the property subject to the usufruct. All others are ordinary repairs.
The trial court then concluded:
In this case, the named defendants, who are naked owners, do not have the right to perform any ordinary repairs pursuant to La.Civ.Code -Art.. 577. The right to perform ordinary repairs and [258]*258the responsibility to inspect the property for defects remains with the usufructu-ary. Since the naked owners do not possess a legal duty to inspect the property for maintenance of ordinary repairs, knowledge of the hole cannot be imputed to the naked owners. Based on La.Civ.Code 2317.1, knowledge of the ruin, vice, or defect is an essential element to the plaintiffs claim.
After re-examination of the legal issues, this court believes that the named defendants, Elizabeth Smith Distefano a/k/a Elizabeth Smith Matney, Anita Smith Campo a/k/a Anita Smith Campo Brewer, and Graham L. Smith, Jr., have established that an absence of factual support for one or more essential elements to the plaintiffs claim exists. The plaintiffs [sic] have not produced evidence to establish that these defendants had the control of the property; that these defendants had a duty to inspect the property for required ordinary repairs; or that these defendants knew or should have known in the exercise of reasonable care that the hole was present.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

The Succession of Linda Hack Pellette
Louisiana Court of Appeal, 2020
Cormier v. Louisiana Farm Bureau Casualty Ins. Co.
109 So. 3d 509 (Louisiana Court of Appeal, 2013)
Zurich North American Insurance Co. v. Holt
888 So. 2d 259 (Louisiana Court of Appeal, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
888 So. 2d 255, 3 La.App. 3 Cir. 1722, 2004 La. App. LEXIS 2324, 2004 WL 2180993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-holt-lactapp-2004.