Kim Noullet v. Bosco's Italian Imports LLC, Bosco's Italian Imports 2, LLC and Big Hat, LLC

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

KIM NOULLET NO. 2021 CW 0567

VERSUS

BOSCO' S ITALIAN IMPORTS,
LLC, BOSCO' S ITALIAN
IMPORTS, # 2, LLC AND BIG OCTOBER 11, 2021
HAT, LLC

In Re: Bosco' s Italian Imports, LLC and Bosco' s Italian
Imports # 2, LLC, applying for supervisory writs, 22nd
Judicial District Court, Parish of St. Tammany, No.
2019- 14766.

BEFORE: THERIOT, HOLDRIDGE, AND HESTER, JJ.

WRIT GRANTED. The test for whether a defendant has custody
over a thing liability
so as to impose on the defendant for
defects caused by it is whether the defendant has a
or damage

right of direction and control over the thing and what, if any,
benefit the defendant derives from the thing. Peters v. Bogalusa
Community Medical Center, 2012- 1777 ( La. App. 1st Cir. 5/ 2/ 13),
117 So. 3d 538, 540. In support of its motion for summary
judgment, Bosco' s Italian Imports, LLC and Bosco' s Italian
Imports # 2, LLC (" Boscos' s") provided the deposition testimony
of the owner of the premises, Joseph Champagne, who testified to

the fact that the area where plaintiff, Kim Noullet, allegedly
fell is in the " common area" of the strip mall, and is used for
the benefit of the entire strip mall, and was not specifically
included in the leased premises to Bosco' s over which Bosco' s
would have responsibility for maintenance; rather, he testified

that Big Hat, LLC owned the property and at all times remained

in control of the
parking lot and the handicap ramp. We find
that Bosco' s carried its burden that plaintiff would be unable
to prove at trial the issue of custody and control of the

premises such that Bosco' s motion should be granted and it
should be dismissed from this case. The burden then shifted to

Ms. Noullet to demonstrate that genuine issues of material fact
exist as to Bosco' s garde over the ramp and parking lot area,

which Ms. Noullet failed to provide. Therefore, we grant this

writ application, reverse the trial court' s March 25, 2021
judgment denying Bosco' s motion for summary judgment, and grant

same, dismissing Bosco' s Italian Imports, LLC and Bosco' s

Italian Imports # 2, LLC, from this suit.

MRT
CHH

Holdridge, J., concurs.

COURT OF APPEAL, FIRST CIRCUIT

DVIDlY CLERK OF COUR
FOR THE COURT