Thomas David Wheat v. State Farm Fire and Casualty Company

Judgment rendered July 17, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,712-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

THOMAS DAVID WHEAT Plaintiff-Appellant

versus

STATE FARM FIRE AND Defendants-Appellees
CASUALTY COMPANY, ET AL

*****

Appealed from the
Third Judicial District Court for the
Parish of Union, Louisiana
Trial Court No. 49,960

Honorable Thomas W. Rogers, Judge

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PARKER ALEXANDER, LLC Counsel for Appellant
ATTORNEYS AT LAW
By: Chad C. Carter

DAVENPORT, FILES, & KELLY, LLP Counsel for Appellees
Carey B. Underwood

*****

Before PITMAN, ROBINSON, and ELLENDER, JJ.

ELLENDER, J.

Thomas David Wheat appeals a summary judgment that dismissed his

personal injury claims against State Farm Fire and Casualty Co. For the

reasons expressed, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In early 2020, Wheat, his brother Walter and Walter’s girlfriend,

Sharon Cordova, rented a house from Randy Aycock on Melcat Drive in

Farmerville, close to Lake Darbonne, where they liked to fish. The house

had a wood-deck porch spanning the front of the house.

In late August 2020, Hurricane Laura came through Union Parish

wreaking widespread damage. A large tree near the house was knocked over

and uprooted; apparently, the base or roots of the tree were thrust up,

punching a hole in the wood deck. Photos show a hole measuring about 8ʹ ×

8ʹ, with some jagged timber around the edges. The photos also show a large

amount of the tenants’ personal property – fishing gear, buckets and pails, a

ladder, lawn equipment – strewn haphazardly over the wood deck.

According to the petition, about three days after the storm passed, Aycock’s

agent (who was also his cousin) came to the property and asked Wheat to

remove his items from the porch so Aycock could fix the hole caused by the

fallen tree.

The next day, Wheat attempted to clean up the porch. However,

according to the petition, while trying to clear some debris adjacent to the

uprooted tree he slipped backward and fell, striking the back of his head on

the ground. He allegedly sustained serious injuries.

In August 2021, Wheat filed suit against Aycock, his unnamed agent,

and his insurer, State Farm. He alleged that the “debris area and area

adjacent to the uprooted tree” constituted a defective condition; the

defendants knew or should have known of this, had an opportunity to

remedy or warn the plaintiff of the danger, but failed to do so. He further

alleged that he was “attentive and aware of his surroundings” and did not

contribute to the accident in any way. Finally, he alleged that State Farm

insured the property. The record does not show that service was ever made

on Aycock or his agent.

State Farm answered admitting coverage and policy limits but

asserted that any alleged defective condition was open and obvious, and

clearly known to the plaintiff. After conducting discovery, State Farm

moved for summary judgment asserting that Wheat provided no evidence to

show the hole was unreasonably dangerous or that the defendants had any

duty to warn him of a danger of which he was perfectly aware. In support,

State Farm filed Ms. Cordova’s affidavit setting out the facts described

above. It also filed her deposition, which added certain details: the agent

told them he was “ready to cut the tree” and “we needed to get all the stuff *

* * away from where the tree is”; Wheat “expressed reservations,” but the

agent told him it was the tenants’ responsibility to clear their personal

property so the tree could be removed; the next day, Wheat tried to dislodge

the lawnmower from the jagged timbers, “trying to pull on it and push on it

at the same time”; she did not actually see the accident, but she heard the

commotion and, when she came to help, she found Wheat down in the hole;

he told her he “hit his head right along that board * * * at the edge.”

Wheat opposed the motion. He offered no evidence in support, but

argued that the owner owed the sole duty to keep his property free from

defects, and the fact that a condition may be open and obvious does not
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obviate that duty; it required a balancing test that was unsuitable for

summary judgment disposition. State Farm countered that based on the

photos, the hole was so open and obvious that it negated the likelihood and

magnitude of harm, thereby making the condition not unreasonably

dangerous.

After a hearing in December 2022, the district court held that the

landlord did not create the condition but was, in fact, trying to get it

repaired; it was reasonable for the landlord to tell the tenants to get their

stuff off the porch so he could fix it. Specifically citing the reasons in State

Farm’s memorandum, the court granted summary judgment dismissing

Wheat’s claims. Wheat has appealed.

APPLICABLE LAW

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. La. C.C.P. art. 966 (B)(2); King v. Town of Clarks, 21-

01897 (La. 2/22/22), 345 So. 3d 422. As such, the motion should be granted

only if the motion, memorandum, and supporting documents show that there

is no genuine issue as to any material fact and the mover is entitled to

judgment as a matter of law. La. C.C.P. art. 966 (A)(3). A genuine issue is

one about which reasonable persons could disagree. Id. Appellate review of

summary judgments is de novo, using the same criteria that informed the

lower court’s decision to grant or deny summary judgment. Landry v.

Progressive Sec. Ins. Co., 21-00621 (La. 1/28/22), 347 So. 3d 712.

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
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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. La. C.C. art. 2317.1. To recover for damages caused by a

defective thing, the plaintiff must prove (1) the thing was in the defendant’s

custody, (2) the thing contained a defect which presented an unreasonable

risk of harm to others, (3) the defective thing caused the damage, and (4) the

defendant knew or should have known of the defect. Perkins v. Air U

Shreveport LLC, 52,093 (La. App. 2 Cir. 5/23/18), 249 So. 3d 187, and

citations therein. The mere fact that an accident occurred because of some

vice or defect does not elevate the condition of the thing to that of an

unreasonably dangerous defect. Lasyone v. Kansas City S. R.R., 00-2628

(La. 4/3/01), 786 So. 2d 682; Nugent v. Car Town of Monroe Inc., 50,910

(La. App. 2 Cir. 9/28/16), 206 So. 3d 369.

A “defect” in a thing, for which one having custody of the thing may

be liable for the damages caused, is a condition or imperfection that poses an

unreasonable risk of injury to persons exercising ordinary care and prudence.

Freeman v. W. Carroll Parish Police Jury, 54,750 (La. App. 2 Cir. 9/21/22),

349 So. 3d 637, writ denied, 22-01583 (La. 12/20/22), 352 So. 3d 83, and

citations therein. To determine whether liability exists under Art. 2317.1,

courts use a duty-risk analysis, under which the plaintiff must prove five

separate elements: (1) the defendant had a duty to conform his conduct to a

specific standard (the duty element), (2) the defendant’s conduct failed to

conform to the appropriate standard (the breach element), (3) the defendant’s

substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-

in-fact element), (4) the defendant’s substandard conduct was a legal cause

of the plaintiff’s injuries (the scope of duty element), and (5) proof of actual
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damages (the damages element). Farrell v. Circle K Stores Inc., 22-00849

(La. 3/17/23), 359 So. 3d 467, and citations therein. Failure to prove any

one of these elements by a preponderance of the evidence is fatal to the

plaintiff’s claim. Id.; Magee v. IASIS Glenwood Reg’l Med. Ctr., 55,157

(La. App. 2 Cir. 8/9/23), 368 So. 3d 1222.

As an aid to analyzing the breach element, the Supreme Court has

synthesized a risk-utility balancing test utilizing four pertinent factors: (1)

the utility of the complained-of condition, (2) the likelihood and magnitude

of harm, including the obviousness and apparentness of the condition, (3) the

cost of preventing the harm, and (4) the nature of the plaintiff’s activities in

terms of social utility or whether the activities were dangerous by nature.

Farrell v. Circle K, supra. Although the court labeled this balancing test

both a question of fact and a mixed question of law and fact, the court

granted summary judgment on a finding that the alleged condition was so

open and obvious that no reasonable juror could have found the defendant in

breach of duty. Id. Hence, the breach element may be resolved on motion

for summary judgment. Id.; Lambert v. Zurich Amer. Ins. Co., 55,064 (La.

App. 2 Cir. 6/28/23), 366 So. 3d 1285.

DISCUSSION

Wheat has raised three assignments of error, the first of which may be

summarily dismissed. He contends the court erred in failing to find the

defendants liable for his damages “under the theory of strict liability.” As

this court and others have stated, since the 1996 enactment of Art. 2317.1,

Louisiana law no longer recognizes strict liability based solely on

ownership. Lasyone v. Kansas City S. R.R., supra; Hagood v. Brakefield,

35,570 (La. App. 2 Cir. 1/23/02), 805 So. 2d 1230, writ denied, 02-0557 (La.
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4/26/02), 815 So. 2d 90, and citations therein; Cosey on Behalf of Hilliard v.

Flight Acad. of New Orleans LLC, 19-0785 (La. App. 4 Cir. 11/12/20), 365

So. 3d 76. The reliance on strict liability is without merit.

By his second and third assignments, he urges the court erred in

failing to find that the hurricane debris was a defective condition that created

an unreasonable risk of harm and in failing to find that Aycock breached his

duty to keep his property in a reasonably safe condition by failing to remove

the piled-up hurricane debris prior to plaintiff’s accident. These arguments

present the issue of premises liability under Art. 2317.1 and the risk-utility

balancing test summarized in Farrell v. Circle K, supra.

The threshold question is whether, under the premises liability of Art.

2317.1, State Farm is entitled to judgment as a matter of law. There is no

genuine issue of material fact that the defendants had custody of the wood

deck, the wood deck contained a defect of some kind, the defect caused the

damage, and the defendants knew of the defect. Obviously, the defect was

not the result of the defendants’ negligence, but of Hurricane Laura, an

extraordinary weather event. The devastation and dislocation caused by a

major hurricane must inform any analysis of landowners’ repair efforts.

Nevertheless, we have considered whether the hole posed an unreasonable

risk of harm to persons exercising ordinary care and prudence. Freeman v.

W. Carroll Police Jury, supra. On de novo review, we have applied the

risk-utility balancing test of Farrell v. Circle K, supra.

The utility of the complained-of condition: The 8ʹ × 8ʹ hole has no

social or economic utility, but it was not intended or present by design. It

was the result of Hurricane Laura. There is no showing that any quality of

the rental house or its wood deck, or any negligence of its owners, caused or
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contributed to the formation of the hole. While there is no utility, this court

cannot find any Art. 2317.1 fault on the part of the owners.

The likelihood and magnitude of the harm, including the obviousness

and apparentness of the condition: This is explicitly where the Supreme

Court applied the “open and obvious” doctrine. If the alleged defect is the 8ʹ

× 8ʹ hole in the wood deck on the front porch, and the dislodged boards

around its edges, it is impossible to imagine anything more open and

obvious. The potential harm of falling into the hole and hitting such a board

is intuitive. If the alleged defect is the assortment of personal effects thrown

haphazardly onto the deck, this is also obvious by cursory observation;

however, the debris appears to pose no threat of harm. Wheat strongly

argues that when Aycock’s agent ordered him to clean up the property so a

tree crew could remove the fallen tree, this amounted to fault on the

defendants’ part. He even contends that Aycock should have hired

“qualified professionals” to remove tenants’ property from the undamaged

portions of the deck. However, he cites no authority for this claim; the duty

lies with the tenant to return the thing “in a condition that is the same as

when the thing was delivered to him,” La. C.C. art. 2683 (3), not for the

lessor to clean the property during the duration of the lease. The crucial

point is that in the aftermath of a devastating hurricane, the hole posed a

great likelihood and magnitude of harm, but the condition was exceptionally

obvious and apparent.

Cost of preventing the harm: The record contains no evidence of the

cost of preventing a tree from being toppled by a hurricane.

Nature of the plaintiff’s activities in terms of social utility or whether

they were dangerous by nature: Wheat’s effort to salvage his own personal
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property from the front porch before repairs were made has obvious social

utility; however, the procedure does not appear dangerous by nature. This

does not weigh heavily as a consideration in assessing the unreasonably

dangerous condition.

On de novo application of the elements of the risk-utility balancing

test required by Farrell v. Circle K, supra, we find the allegedly hazardous

condition was not an unreasonably dangerous condition. State Farm

satisfied its initial burden of pointing out the absence of factual support for

the breach element of Wheat’s Art. 2317.1 claim and Wheat offered no

evidence to support this element. In short, State Farm pointed out the

absence of factual support for an element essential to Wheat’s claim. We

also find that, under Art. 2317.1, State Farm is entitled to judgment as a

matter of law. These assignments of error lack merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed. Thomas David

Wheat is to pay all costs.

AFFIRMED.

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