Beau Meynard, Jr. v. Pickett Industries, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-887

BEAU MEYNARD, JR., ET AL.

VERSUS

PICKETT INDUSTRIES, INC., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 205,921
HONORABLE GEORGE CLARENCE METOYER JR, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Michael G. Sullivan, Judges.

COOKS, J., DISSENTS AND ASSIGNS WRITTEN REASONS.

AFFIRMED.

Laura Norton Sylvester
P. O. Box 13020
Alexandria, LA 71215-3020
Telephone: (318) 445-4516
COUNSEL FOR:
Defendant/Appellee - City of Alexandria

Mark Felipe Vilar
Faircloth, Davidson Vilar & Elliott, L.L.C.
P. O. Box 12730
Alexandria, LA 71315-2730
Telephone: (318) 442-9533
COUNSEL FOR:
Plaintiff/Appellant - Beau (Harvey E.) Meynard, Jr. and Robin King
Meynard

Scott Louis Zimmer
COOK, YANCEY, KING & GALLOWAY
P. O. Box 22260
Shreveport, LA 71120
Telephone: (318) 221-6277
COUNSEL FOR:
Defendant/Appellee - Pickett Industries, Inc. and American
Employers Ins. Co.

THIBODEAUX, CHIEF JUDGE.

In this summary judgment proceeding, plaintiff, Harvey E. Meynard, Jr.,

appeals the trial court’s grant of a summary judgment in favor of the defendant, City

of Alexandria (City). Mr. Meynard was injured on an area of his property which the

City held as a servitude, and argued that the City should be held responsible for the

condition of the easement. Because Mr. Meynard did not show the existence of

issues of material fact regarding the City of Alexandria’s custody and notice of a

hazardous condition, we affirm the trial court’s judgment.

I.

ISSUES

Mr. Meynard argues that the trial court erred in granting the City of

Alexandria’s motion for summary judgment because the accident occurred on a City

easement during a construction project in which the City retained custody and guard

of the servitude area. He also argues that the City had a duty to protect him from

hazardous conditions on the servitude, and the City knew or should have known of

the existence of the hazardous condition.

II.

FACTS

In August of 2000, Pickett Industries, Inc., under the auspices of the City

of Alexandria, began a construction and drainage improvement project on the canal

which abuts the backyards of several residences on Belleau Wood Boulevard in

Alexandria, Louisiana. The plan included excavation and drainage work. The project

covered a portion of Harvey E. Meynard, Jr.’s property which was subject to a

drainage and utility servitude.

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On April 11, 2001, Mr. Meynard walked into this area of his backyard

to take before-and-after pictures of the construction project. He fell and injured

himself on a piece of rebar that had been obscured by the grass. Rebar is used to

reinforce concrete, and is commonly used in construction projects. Mr. Meynard sued

the City of Alexandria and Pickett Industries. Pickett Industries filed a motion for

summary judgment. The trial court denied Pickett’s motion, finding there were issues

of material fact that needed to be resolved at trial. Pickett did not appeal. The trial

court, however, granted the City of Alexandria’s motion for summary judgment. The

City’s motion asserted that it did not have custody of the area where the plaintiff was

injured, had no duty to protect the plaintiff from the harm suffered, and had no

knowledge of the hazardous condition in the construction site.

The trial court concluded that plaintiff had provided no evidence there

was an unresolved question of material fact, and that therefore the City of Alexandria

was entitled to judgment as a matter of law. The trial court specifically requested

evidence that the City used rebar in any of its construction work in that area. Mr.

Meynard provided testimony and documents showing that the City hired an

engineering firm, Meyer, Meyer, LaCroix & Hixson, to perform design work and

surveys, and to inspect the project several times a week. Additionally, the City

maintained the servitude area by mowing the grass, removing weeds, and improving

drainage prior to construction. In granting the motion for summary judgment,

however, the court found that plaintiff provided no evidence that the City was aware

of or had placed rebar in that area.

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III.

LAW AND DISCUSSION

Mr. Meynard’s suit alleges that because the City of Alexandria had

custody and control of the easement, it was responsible for the condition of the

property and, therefore, is liable for damages caused by the hazardous condition

found on the easement. Civil Code Articles 2317 and 2317.1 govern duties created

by ownership of a thing. Article 2317 ascribes responsibility for damages caused by

things in custody to their custodian; Article 2317.1 makes a custodian responsible for

damages caused by a dangerous condition inherent in the thing “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.” Id.

Louisiana Code of Civil Procedure Article 966 encapsulates the standard

for granting motions for summary judgment. A motion which demonstrates that

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

judgment as a matter of law shall be granted.” La.Code Civ.P. art. 966(C)(1). In

order to succeed in the motion for summary judgment, the moving party must

establish the nonexistence of issues of material fact. Union Oil Co. of California v.

Cheyenne Oil Properties, Inc., 02-1330 (La.App. 3 Cir. 3/5/03), 839 So.2d 1170. The

burden of proof to sustain the motion remains with the movant. However, that burden

does not require the movant to negate each element of the opposing party’s claim.

Pulling ex rel. Pulling v. Desmare, 00-1869 (La.App. 5 Cir. 5/30/01), 788 So.2d 706.

If the moving party does not have the burden of proof on the issue at trial, his

responsibility is to demonstrate an absence of factual support for one or more

elements essential to the other party’s claim. Thereafter, if the other party fails to

produce factual support sufficient to establish that he will be able to satisfy his

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evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.; see

also Pardue v. AT&T Telephone Co., 01-762 (La.App. 3 Cir. 10/31/01), 799 So.2d

710, writ denied, 01-3167 (La. 2/8/02), 808 So.2d 352. An appellate court must

review summary judgments de novo under the same criteria that govern the district

court’s decision of whether summary judgment is appropriate. Union Oil Co., 839

So.2d 1170.

To prevail on either a negligence or strict liability theory of damages

caused by ruin, vice or defect, the plaintiff must show that the thing which caused the

damage was in the custody of the defendant, that the thing had a defect which created

an unreasonable risk of harm, and that the injury was caused by the defect. Conques

v. Wal-Mart Stores, Inc., 00-619 (La.App. 3 Cir. 2/14/01), 779 So.2d 1094, writ

denied, 01-715 (La. 4/20/01), 790 So.2d 643. Additionally, Mr. Meynard must show

that the City of Alexandria knew or should have known of the defect. To sustain a

cause of action under La.Civ.Code art. 2317 against a public entity for damages

caused by things under its custody, La.R.S. 9:2800(C) requires the plaintiff show the

public entity “had actual or constructive notice of the particular vice or defect which

caused the damage” before the accident occurred.

In the defendant’s motion for summary judgment, however, the City

demonstrated the evidence regarding custody and notice does not support Mr.

Meynard’s assertion of liability. Mr. Meynard asserts that the City had custody over

the servitude because it performed maintenance, such as mowing the grass, removing

weeds, improving drainage, and performing surveys of the land. The City maintains

that their contract with Pickett assigned responsibility for maintenance, safety

precautions, cleanup, and staffing of the project. Their contract specifically states

that Pickett assumed responsibility for keeping the construction area free from waste,

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debris, and surplus materials. Additionally, the contract stated that the City shall not

“supervise, direct, control or have authority over” Pickett’s construction methods or

procedures. The City of Alexandria also provided deposition testimony from

Pickett’s site manager showing that Pickett, and not the City, was responsible for the

condition of the construction site.

Despite this evidence, Mr. Meynard argues that Louisiana jurisprudence

on custody incorporates circumstances in which more than one party was found to

have custody of a thing. The situations in which courts have considered dual custody

of a thing, however, have primarily been cases in which two parties share

responsibilities of custodianship. For instance, one party may have custody of the

behavior of a thing, while the other has custody over the structure of the thing. The

former bears responsibility for the consequences of the thing’s actions, while the

latter bears responsibility for the consequences of the thing’s defects. King v

Louviere, 543 So.2d 1327 (La.1989). Also, situations in which parties have split the

responsibility for property or things may give rise to dual custodianship, but the

custody is framed in reference to the relationship between the custodian and the thing.

For example, in Ehrman v. Holiday Inns, Inc., 94-312 (La.App. 4 Cir. 3/29/95), 653

So.2d 732, Holiday Inn had agreed by contract to maintain and repair the premises

it leased from the property owner, but did not lease the sidewalk in front of the

building. Holiday Inn benefitted enormously from the adjacent sidewalk, and in fact

cared for that area of sidewalk by hosing it and applying a degreaser. The court found

Holiday Inn liable for the condition of the property, but noted that another defendant

may also be held liable “by its own actions and relationship to the thing causing

plaintiff’s injury.” Id. at 738. The other defendant, a parking garage who leased

property adjacent to the sidewalk, was not responsible for cleaning the area by terms

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of the contract. The court found, however, that the lease created custody or garde of

the area, since use of the garage required use of that stretch of sidewalk. That area

was an integral part of the garage, and the garage owner was therefore responsible for

its upkeep.

Unlike the situations described above, the City of Alexandria did not

share dual custody with Pickett Industries. The trial court was correct.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs

of appeal are assessed to appellant Harvey E. Meynard, Jr.

AFFIRMED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-887

BEAU MEYNARD, JR.

VERSUS

PICKETT INDUSTRIES, INC.

COOKS, J., dissents.

I disagree with the result reached by the majority opinion dismissing the City

of Alexander on a motion for summary judgment. The majority opinion holds the

City had no custody and control of the easement and no knowledge of the presence

of the rebar on the site and therefore no cause of action can be maintained against it.

The City was the owner of the easement and contracted with Pickett Industries to

perform drainage improvements on the property. When the City invited Pickett

Industries onto the property, as owner, it did not relinquish legal custody and control,

rather the City exercised its custody and control of the area. Moreover, while the City

might not have had specific knowledge of the presence of rebar, it certainly had

knowledge of the fact that the area was a construction site. To the extent the City is

found liable for the negligence of the contractor, its legal recourse is to seek

indemnification from the third party tortfeasor as provided in the contract which is

typically secured by a bond. The City has a responsibility to contract with a reputable

company to perform the work and cannot abdicate its primary legal obligation to the

landowner. For that reason, I would not have granted the summary judgment in favor

of the City of Alexandria.