Bobby Washington v. Shreveport Loop LP, FSS Management, LLC, and Western World Insurance Company

Judgment rendered February 26, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,169-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

BOBBY WASHINGTON Plaintiff-Appellant

versus

SHREVEPORT LOOP LP, FSS Defendants-Appellees
MANAGEMENT, LLC, AND
WESTERN WORLD
INSURANCE COMPANY

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 629,227

Honorable Christopher T. Victory, Judge

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JEAN PAUL GUIDRY Counsel for Appellant

HAILEY MCNAMARA, LLP Counsel for Appellees
By: David K. Persons
Gerald F. Arceneaux

*****

Before COX, THOMPSON, and HUNTER, JJ.

COX, J.

This suit arises out of the First Judicial District Court, Caddo Parish,

Louisiana, the Honorable Chris Victory presiding. Bobby Washington

brought suit against Southern Loop LP (“Southern Loop”), FSS

Management, LLC (“FSS”), Western World Insurance Company (“Western

World”), and later, Admiral Insurance Company (“Admiral Insurance”)

(collectively referred to as “the Defendants”) for damages sustained after a

fall. The trial court granted summary judgment in favor of the Defendants.

Washington now appeals. For the following reasons, we affirm the trial

court.

FACTS

On March 22, 2021, Washington filed his petition for damages against

the Defendants. Washington was a resident at the Summer Tree Apartment

Homes (“the Apartments”) in Shreveport, which was owned by Shreveport

Loop, managed by FSS, and insured by Western World. Washington stated

that on June 13, 2020, he was bracing his hand against a second-story

balcony railing at the Apartments, when the railing broke, causing him to

fall to the ground and sustain injuries. He alleged that the disintegration and

age of the railing created a vice or defect. He asserted that Shreveport Loop

and FSS knew or should have known of the defect; failed to take corrective

action in a reasonable period of time; and failed to warn of the dangerous

condition. Washington alleged neck and back injuries from his fall and

included the following damages (past, present, and future): medical

expenses; physical pain and suffering; mental pain and anguish; permanent

injuries and disability; loss of earnings/wages; loss of future earning

capacity; and loss of enjoyment of life.

Southern Loop and FSS answered, denying the claims and disputing

the injuries. They alleged that Washington’s injuries were caused by his

own negligence.

On June 20, 2022, Washington filed a motion to compel discovery.

He alleged that he served the Defendants with interrogatories and requests

for production of documents on June 30, 2021, and had not received a

response. On June 30, 2021, Washington filed his first amended petition to

substitute Admiral Insurance in the place of Western World. He voluntarily

dismissed Western World from the suit. The order dismissing Western

World was signed on July 1, 2021.

On November 21, 2023, the Defendants filed a motion for summary

judgment. They attached the following exhibits:

A. Plaintiff’s petition for damages;

B. Plaintiffs first amended petition;

C. Affidavit of Betty Lewis- Ms. Lewis stated that Washington
accepted the apartment “AS IS” with the exceptions of a broken screen door
and no ice maker. She stated that Washington never notified FFS of any
defects to his balcony railing.

D. Shreveport Loop’s responses to Plaintiff’s request for admissions,
interrogatories, and production of documents;

E. Excerpts from the deposition of plaintiff, Bobby Washington-
Washington stated that he lived in the apartment for two years, never had
problems with the railings, nothing indicated the railings were not securely
attached; and never complained about the railings.

F. Plaintiff’s responses to Defendants’ second set of discovery
requests.

The Defendants submitted the following uncontested facts:

Washington rented the apartment from Shreveport Loop; Washington never

notified FSS of any defects in the railing; the lease specifies that the resident

assumes sole responsibility for the condition of the premises unless
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FSS/Southern Loop acts in a grossly negligent manner in remedying

vice/defect after written notice of the vice/defect; and Washington admitted

in his deposition that he never noticed any problem with the railing.

Washington opposed the motion for summary judgment, arguing that

whether the Defendants knew or should have known of the balcony defect is

a question for the trier of fact. He submitted that because other balconies

were repaired prior to and after his fall, the Defendants knew other balconies

were defective. He attached reports of repairs and pictures of other

balconies. He stated, “Here, defendants had knowledge that many of the

[Apartments’] balconies were defective and needed repair. Defendants had

knowledge that the balconies were 40 years old. Defendants had knowledge

that if one of the [Apartments’] balconies were to fail, it could cause serious

injury or death.” Washington attached Ayona Washinton’s affidavit. Ayona

is Washington’s daughter, who was present at the time of the accident, and

took pictures the day following the accident.

Washington filed a motion to deem matters admitted pursuant to La.

C.C.P. art. 1467(B). He asserted that the Defendants’ responses to his

supplemental discovery request were not in compliance with La. C.C.P. art.

1466; therefore, those matters should be deemed admitted. Washington

requested the following admissions:

No. 2: Please admit that the balcony at issue, including its
railing and component parts, had not been replaced between the
time Shreveport Loop, LP bought the Apartments and Bobby
Washington’s fall.

No. 4: Please admit that the balcony at issue, including its
railing and component parts, had not been replaced between the
time the Apartments were originally built and Bobby
Washington’s fall.

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No. 6: Please admit that the balcony at issue, at the time of
Bobby Washington’s fall, was made of the same materials as
the balconies referenced in Exhibit 1 prior to their
repair/replacement.

No. 7: Please admit that the balcony at issue was originally
built at the same time as the balconies referenced in Exhibit 1
were originally built.

The Defendants responded, “Defendant can neither admit nor deny this

request; Shreveport Loop, LP sold the property and Defendant no longer has

access to the records necessary to formulate a response.”

Washington also argued that this response may give rise to an adverse

presumption due to spoliation of evidence because Shreveport Loop sold the

property over a year and a half after the litigation began.

The Defendants opposed Washinton’s motion to have matters deemed

admitted. They asserted that they explained in their response that they were

not in possession of the necessary records; therefore, they could not admit or

deny. They argued that spoliation did not apply because they did not destroy

the records, they simply sold the building and did not retain the maintenance

records. They argued that Washington’s motion should be denied.

On April 3, 2024, the district court signed its ruling, denying the

motion to deem matters admitted and granting the motion for summary

judgment. The trial court stated that the Defendants’ denials “fairly met the

substance of the requested admissions,” and “presumably, the records still

exist with the new owner[.]” As to summary judgment, the trial court stated

that Washington testified in his deposition that he was unaware of the

condition of the balcony railing prior to his fall and had no reason to believe

the Defendants had knowledge of the railing defect either. Therefore,

Washington could not carry his burden of proof at trial that the Defendants

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knew or should have known of the defective railing. The ruling was

memorialized in two judgments on April 17, 2024, which also dismissed

Washington’s claims with prejudice.

Washington now appeals both judgments.

DISCUSSION

Motion to deem matters admitted

Washington argues that the trial court erred in denying his motion to

deem matters admitted. He asserts that the Defendants’ answers to the

supplemental discovery requests and requests for admissions did not comply

with the requirements of La. C.C.P. art. 1466, as detailed above.

Washington argues that their responses do not comply with the law

and may give rise to an adverse presumption due to spoliation of evidence.

He states that the petition was filed March 22, 2021, and Shreveport Loop

did not sell the property until November 30, 2022. For this reason, he

asserts that the law of spoliation should apply. He argues that this Court

should deem those matters admitted for the purposes of the pending action.

In the alternative, he asserts that there should be an adverse presumption

against the Defendants.

The standard of review for discovery matters is abuse of discretion.

Jones v. Quality Distribution, Inc., 22-0104 (La. App. 4 Cir. 9/14/22), 366

So. 3d 476, writ denied, 22-01608 (La. 1/11/23), 352 So. 3d 985.

Pursuant to La. C.C.P. art. 1466, “a party may serve upon any other

party a written request for an admission” of the truth of any relevant factual

matter. According to La. C.C.P. art. 1467, a matter is deemed admitted

unless a written answer or objection is served on the party making the

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request within the specified time after service of the request. La. C.C.P. art.

1467(B) states:

The party who has requested the admissions may move to
determine the sufficiency of the answers or objections. Unless
the court determines that an objection is justified, it shall order
that an answer be served. If the court determines that an answer
does not comply with the requirements of this rule, it may order
either that the matter is admitted or that an amended answer be
served.

Spoliation constitutes a tort action against someone who has impaired

the party’s ability to institute or prove a civil claim due to negligent or

intentional destruction of evidence. Aymond v. Am. Nat. Prop. & Cas. Co.,

48,615 (La. App. 2 Cir. 11/20/13), 130 So. 3d 10. Generally, a litigant’s

failure to produce evidence that is available to him raises a presumption that

the evidence would have been detrimental to his case. However, this

adverse presumption is not applicable when the failure to produce the

evidence is adequately explained. Id.

Here, the issue is whether the Defendants’ responses were adequate.

The Defendants stated, “Defendant can neither admit nor deny this request;

Shreveport Loop, LP sold the property and Defendant no longer has access

to the records necessary to formulate a response.” The trial court found that

the Defendants’ denials “fairly met the substance of the requested

admissions,” and “presumably, the records still exist with the new owner[.]”

We find that the trial court did not abuse its discretion in finding this

answer to be sufficient. The Defendants neither admitted nor denied the

allegation and explained in their answer that they no longer had the

necessary documents in their possession to formulate an answer. This was

not due to the destruction of the records but because the records were

transferred with the property. The Defendants adequately explained why
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they did not possess the requested documents. Therefore, there is no adverse

presumption for spoliation of evidence.

We affirm the trial court’s judgment denying Washington’s motion to

deem matters admitted.

Motion for Summary Judgment

Washington argues that the trial court erred in granting the

Defendants’ motion for summary judgment. He asserts that the Defendants

knew or should have known of a vice or defect in the balcony railing.

Washington presented 13 invoices from June 20, 2016, to May 15, 2020, as

proof of the Defendants’ knowledge that the balcony rail was defective. He

also submitted a list of eight additional defective balconies that were

repaired within one year of his accident.

Washington asserts that the Defendants had knowledge that many of

the apartment balconies were defective and needed repair—the balconies

were 40 years old. He argues that the Defendants knew that if one of the

balconies failed, it would cause serious injury or death. He requests that this

Court reverse the trial court’s granting of the Defendants’ motion for

summary judgment.

The summary judgment procedure is designed to secure the just,

speedy, and inexpensive determination of every action, except those

disallowed by Art. 969. The procedure is favored and shall be construed to

accomplish these ends. La. C.C. art. 966(A)(2). The judgment shall be

granted if the motion, memorandum, and supporting documents show that

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

judgment as a matter of law. La. C.C. art. 966(A)(3). The burden of proof

rests with the mover. Nevertheless, if the mover will not bear the burden of
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proof at trial on the issue that is before the court on the motion for summary

judgment, the mover’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. The burden is on the adverse party to produce factual support

sufficient to establish the existence of a genuine issue of material fact or that

the mover is not entitled to a judgment as a matter of law. La. C.C. art. 966

D(1).

Summary judgments are reviewed on appeal de novo. Samaha v. Rau,

07-1726 (La. 2/26/08), 977 So. 2d 880; Pistorius v. Higbee Louisiana, LLC,

54,780 (La. App. 2 Cir. 2/8/23), 356 So. 3d 1204, writ denied, 23-00331 (La.

5/2/23), 359 So. 3d 1290. A fact is material if it potentially ensures or

precludes recovery, affects a litigant’s ultimate success, or determines the

outcome of the legal dispute. A genuine issue of material fact is one as to

which reasonable persons could disagree; if reasonable persons could reach

only one conclusion, there is no need for trial on that issue and summary

judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La. 4/3/09),

9 So. 3d 780; Pistorius v. Higbee Louisiana, LLC, supra.

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

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.

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Notwithstanding the provisions of La C.C. art. 2699, the owner of

premises leased under a contract whereby the lessee assumes responsibility

for their condition is not liable for injury caused by any defect therein to the

lessee or anyone on the premises who derives his right to be thereon from

the lessee, unless the owner knew or should have known of the defect or had

received notice thereof and failed to remedy it within a reasonable time. La.

R.S. 9:3221.

At trial, Washington would bear the burden of proving the elements of

his claims against the Defendants, including that the Defendants knew or

should have known of the defect or received notice and failed to act. For the

Defendants to prevail on summary judgment, they were required to show an

absence of factual support for any of the elements of Washington’s cause of

action. Here, the Defendants alleged that they did not know of any defects

in the railing and were never notified of a problem.

Washington signed his lease on the apartment a year prior to his fall.

Washington’s lease provided, in part:

LIABILITY. Resident assumes sole responsibility for the
condition of the Premises. Owner and its employees and agents
shall not be responsible for damage or injury caused by any
alleged vices or defects in or on the Premises, or any
consequences thereof; except in the event of gross neglect to
take action toward remedying such vice or defect after having
received prior written notice thereof.

In his deposition, Washington stated that he received carpentry

training. Washington denied having any problems with the railings or

noticing any need for repair. He also denied making any complaints to the

apartment manager/owner that the railing needed repair. Washington was

unaware that anyone had ever made a complaint about that railing.

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Based on Washington’s admissions, we agree with the trial court that

the Defendants neither knew nor should have known that the railing was

defective and in need of repair. Washington, who lived in the apartment and

had carpentry knowledge, walked by the railing frequently and did not report

or even notice any issues.

Like the trial court, we find that summary judgment was appropriate

under the facts of this case. We affirm the trial court judgment dismissing

Washington’s suit.

CONCLUSION

The trial court ruling which granted summary judgment in favor of the

Defendants is affirmed. Costs of this appeal are assessed to the appellant,

Bobby Washington.

AFFIRMED.

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