Davenique Helmstetter Versus U-Haul International, Inc., Allan Bruce Awe, and Allan Bruce Awe D/B/A Aba Rentals

DAVENIQUE HELMSTETTER NO. 24-C-344

VERSUS FIFTH CIRCUIT

U-HAUL INTERNATIONAL, INC., ALLAN COURT OF APPEAL
BRUCE AWE, AND ALLAN BRUCE AWE
D/B/A ABA RENTALS STATE OF LOUISIANA

October 15, 2024

Linda Wiseman
First Deputy Clerk

IN RE U-HAUL CO. OF LOUISIANA, ALLAN BRUCE AWE, AND ABA RENTALS, INC.

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT,
PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
VERCELL FIFFIE, DIVISION "A", NUMBER C-74869

Panel composed of Judges Marc E. Johnson,
Scott U. Schlegel, and Timothy S. Marcel

WRIT DENIED

Relators/Defendants, Allan Bruce Awe, U-Haul Co. of Louisiana (“U-Haul”),

and ABA Rentals, Inc. (“ABA”), seek review of the trial court’s June 30, 2024 denial

of its motion for summary judgment. Relators assert that they are entitled to

summary judgment and dismissal from Respondent/Plaintiff’s, Davineque

Helmstetter, action. In her petition, Ms. Helmstetter alleged that she sustained

injuries after being confronted by a dog while attempting to return the keys to a van.

In their motion for summary judgment, U-Haul and ABA argued that they must be

dismissed from the action because they were not the owners of the dog in question

and can have no liability for the dog’s actions. Mr. Awe argued that he had no

liability for Ms. Helmstetter’s injuries because the dog was within a fence and made

no direct physical contact with her. In its oral reasons for judgment, the trial court

24-C-344

believed that summary judgment was not appropriate because the owner of the

business and the owner of the dog, Mr. Awe, has not been located for deposition.

After de novo review, we find that summary judgment is not appropriate at

this time. A review of the admissible summary judgment evidence shows that there

are remaining genuine issues of material fact, e.g., whether Defendants had custody,

pursuant to La. C.C. art. 2317, of the dog on the night of the alleged incident, and

whether the dog posed an unreasonably dangerous hazard. Accordingly, the writ

application is denied.

Gretna, Louisiana, this 15th day of October, 2024.

MEJ
TSM

2

DAVENIQUE HELMSTETTER NO. 24-C-344

VERSUS FIFTH CIRCUIT

U-HAUL INTERNATIONAL, INC., ALLAN COURT OF APPEAL
BRUCE AWE, AND ALLAN BRUCE AWE
D/B/A ABA RENTALS STATE OF LOUISIANA

SCHLEGEL, J., CONCURS IN PART AND DISSENTS IN PART
WITH REASONS

I agree with the majority’s decision to deny summary judgment based on

the ownership issues raised by defendants, U-Haul Co. of Louisiana and ABA

Rentals, Inc. These defendants moved for summary judgment only on the

ownership issue, failed to address the additional issue of custody outlined by the

majority decision, and failed to provide any competent evidence to shift the burden

to Ms. Helmstetter. See La. C.C.P. arts. 966(A)(4)(a) and 966(D)(1) and (2).

However, I dissent from the majority’s decision to deny the writ application

with respect to the separate arguments raised by defendant, Allan Bruce Awe. Mr.

Awe moved for summary judgment on the grounds that the applicable law and

jurisprudence do not recognize liability for a fenced dog that has no direct contact

with the plaintiff. He further argued that Ms. Helmstetter was aware of the dog’s

presence as she saw and heard the dog as she approached the fence. Because I

believe the writ application has merit on these issues, and if granted, would result

in summary judgment in favor of Mr. Awe, I would assign the case for briefing

and give the parties the opportunity to request oral argument, as provided in La.

C.C.P. art. 966(H).

SUS

24-C-344

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 10/15/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-344
E-NOTIFIED
40th District Court (Clerk)
Honorable Vercell Fiffie (DISTRICT JUDGE)
Fielding Matkins (Respondent)

MAILED
Christopher J. Alfieri (Relator) Mary Margaret Keys (Respondent) Dominick M. Bianca (Respondent)
Oscar M. Gwin, IV (Relator) 8212 Summa Avenue DAVOLI, SORRELLS & BIANCA
Attorney at Law Baton Rouge, LA 70809 8212 Summa Avenue
601 Poydras Street Baton Rouge, LA 70809
Suite 2300
New Orleans, LA 70130