Rayeanne Owens and Rene Owens v. Entergy Corporation

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-616

RAYEANNE OWENS AND RENE OWENS

VERSUS

ENTERGY CORPORATION,
CITY OF BROUSSARD AND KATHY LOWES

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 2004-3076
HONORABLE THOMAS DUPLANTIER, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Chief Judge Ulysses Gene Thibodeaux, Sylvia R. Cooks, and
Billy H. Ezell, Judges.

REVERSED.

Louis R. Koerner, Jr.
Koerner Law Firm
400 Lafayette Street
P.O. Box 4297
Houma, Louisiana 70361
(985) 580-0350
COUNSEL FOR PLAINTIFF/APPELLANT:
Rene Owens

Kenneth W. Jacques
Law Offices of Kenneth W. Jacques
203 Carondelet Street
Suite 355, Maritime Bldg.
New Orleans, Louisiana 70130
(504) 524-1954
COUNSEL FOR PLAINTIFF/APPELLANT:
Rene Owens

George J. Armbruster, III
The Panagiotis Firm
1540 West Pinhook Road
Lafayette, Louisiana 70503
(337) 264-1516
COUNSEL FOR PLAINTIFF/APPELLANT:
Rayeanne Owens

Thomas R. Hightower, Jr.
Wade Kee
A Professional Law Corporation
1019 Lafayette Street
Post Office Drawer 51288
Lafayette, Louisiana 70505
(337) 233-0555
COUNSEL FOR DEFENDANTS/APPELLEES:
Shelter Mutual Insurance Company and
Cathy Lyles, as owner of and as pertains to
110 Brownlee Avenue

John W. Penny, Jr.
Penny & Hardy
100 East Vermilion Street
Gordon Square, Suite 301
P.O. Box 2187
Lafayette, Louisiana 70502
(337) 231-1955
COUNSEL FOR DEFENDANTS:
Cathy Lyles and
Allstate Insurance Company

Joseph R. Ballard
John A. Braymer
P.O. Box 2431
Baton Rouge, Louisiana 70821
(225) 381-5887
COUNSEL FOR DEFENDANT:
Entergy Gulf States, Inc.

Donald D. Landry
Perrin, Landry, deLaunay, Dartez & Ouellet
P.O. Box 53597
Lafayette, Louisiana 70505
(337) 237-8500
COUNSEL FOR DEFENDANT:
City of Broussard

Paul F. Baker
Law Offices of Keith S. Giardina
9100 Bluebonnet Centre Blvd., Suite 300
Baton Rouge, Louisiana 70809
(225) 293-7272
COUNSEL FOR DEFENDANT:
Robert Broussard

COOKS, Judge.

STATEMENT OF THE CASE

Rene and Rayeanne Owen appeal the judgment of the trial court granting Cathy

Lyles’ and Shelter Mutual Insurance Company’s motion for summary judgment. For

the reasons assigned below, we reverse the judgment of the trial court.

STATEMENT OF THE FACTS

Cathy Lyles is the owner of two rental houses on Brownlee Avenue, Broussard,

Louisiana, which are adjacent to one another. The house at 110 Brownlee was leased

to Robert Broussard and insured by Shelter Mutual Insurance Company. The written

lease between Mr. Broussard and Ms. Lyles provided the lessee assumed liability for

injury caused by any defect in the leased premises under La.R.S. 9:3221. The other

residence at 108 Brownlee was leased to Rene and Rayeanne Owens and insured by

Allstate Insurance Company. There was no written lease between Ms. Lyles and the

Owens.

Sometime around June 4, 2003, Mr. Broussard discovered a large hole in the

grassy area which forms the boundary between the two lots. The hole was apparently

formed when a sewer pipe burst underneath an Entergy utility box. The leaking water

caused erosion in the area, and the utility box was broken and leaning over. When

Mr. Broussard looked into the hole he could see exposed wires on the utility pedestal.

He described the hole as being twelve to fifteen inches in diameter and over two feet

deep. He called and reported the problem to Entergy on two occasions, and he

attempted to remove the grass, which had grown over the hole, to expose the hole to

view and minimize the danger to others in the neighborhood. Eventually, the leaky

pipe was replaced by the City of Broussard and Entergy repaired the broken utility

box. However, prior to the repair, on June 23, 2003, while cutting his grass Rene

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Owens fell into the hole injuring his back, leg and knee.

Mr. Owens, and his wife, Rayeanne, sued Entergy, the City of Broussard, Cathy

Lyles and her insurers, Allstate and Shelter for injuries. The Owens amended their

petition to name Robert Broussard and his insurer, Liberty Mutual Insurance

Company, as defendants, based upon Mr. Broussard’s responsibility to maintain the

premises under the lease.

Shelter filed a motion for summary judgment alleging there is no dispute that

Ms. Lyles was unaware of the existence of the hole on or near the 110 Brownlee

property. Absent knowledge of the potential danger created by the hole, as owner of

110 Brownlee, Ms. Lyles owed no duty to warn Rene Owens of its existence and no

liability for injuries sustained. Ms. Lyles relied on La.Civ.Code art. 2317.1.

Additionally, Shelter asserted Ms. Lyles, as lessor of 110 Brownlee, was absolved of

any responsibility for the condition of the property because the lease agreement on

110 Brownlee places the liability on Mr. Broussard. Ms. Lyles relied on La.R.S.

9:3221. The trial court agreed with Shelter and granted the motion for summary

judgment dismissing Ms. Lyles as owner of 110 Brownlee and her insurer, Shelter.

The trial court maintained the claim against Ms. Lyles, as owner/lessor of 108

Brownlee, and her insurer, Allstate.

The Owens appeal asserting the trial court erred because there are disputed

issues of material fact as to the location of the hole, and under La.Civ. Code art. 2695,

Ms. Lyles, as lessor, has a responsibility to remedy any unreasonably dangerous

condition on the premises leased to and/or commonly used by the Owens. Further,

the Owens assert the trial court erred in finding as a matter of law Ms. Lyles was

absolved of all liability based on the terms of the lease with Mr. Brousssard. We

agree and reverse the judgment of the trial court granting summary judgment in favor

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of Shelter and Ms. Lyles as owner of 110 Brownlee.

LAW AND DISCUSSION

Ms. Lyles, as lessor, is responsible under La.Civ.Code art. 2695 for any

unreasonably dangerous condition on the leased premises. At the time of the

accident, La.Civ. Code art. 2695 provided as follows:

The lessor guarantees the lessee against all the vices and defects
of the thing, which may prevent its being used even in case it should
appear he knew nothing of the existence of such vices and defects, at the
time the lease was made, and even if they have arisen since, provided
they do not arise from the fault of the lessee; and if any loss should
result to the lessee from the vices and defects, the lessor shall be bound
to indemnify him for the same.

Ms. Lyles and Shelter assert because the hole is not located on the premises

leased to the Owens, but on property leased to Mr. Broussard, Ms. Lyles has no

liability for injury to Mr. Owens under this provision. We find there is a serious

factual dispute as to the location of the hole and the use of the property by each of the

tenants. In fact, a survey and inspection of the area of the hole indicated that a

portion of the hole was located on 110 Brownlee and a portion was on 108 Brownlee.

The testimony of both Mr. Broussard and the Owens confirm that the land area

between 108 and 110 Brownlee was not clearly attributed by use to either lessee and

both parties cut the grass and used the common area. Ms. Lyles testified her belief

was that the box was “right in the center” of the common area between the two

properties. We find the trial court erred in finding no dispute that the hole was

located entirely on the premises of 110 Brownlee.

Shelter and Ms. Lyles assert, as a matter of law, if the hole is located on 110

Brownlee, Mr. Broussard, as lessee, not Ms. Lyles, is responsible for any defect in the

property and is liable for injury to individuals using the common area. Shelter and

Ms. Lyles relies on the following lease provision:

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The provisions of La.R.S. 9:3221 shall apply to this lease.
Accordingly, lessee assumes responsibility for this condition of the
leased premises and Lessor shall not be liable for injury caused by any
defect in the leased premises to the lessee or anyone on the premises
who derives his right from the lessee, unless Lessor knew or should have
known of the defect or had received notice thereof and failed to remedy
it within a reasonable time.

However, in order to shift liability to the lessee for property defects, the parties

must clearly agree to the transfer of liability. See McKnight v. McCastle, 04-2437

(La.App. 1 Cir. 12/22/05), 928 So.2d 45, writ denied, 06-205 (La.4/24/06), 926 So.2d

548. Although the statutory warranty against vices and defects may be dispensed

with as a condition of a lease and are not against public policy, to be effective, such

waiver must be written in clear and unambiguous terms, contained in a written

contract and brought to the attention of the lessee or explained to him. Walnut

Equipment Leasing Co., Inc. v. Moreno, 26,004 (La.App. 2 Cir. 9/21/94), 643 So.2d

32; Smith v. Kaye’s Foodmarket, 38,518 (La.App. 2 Cir. 5/19/04), 874 So.2d 395,

writ denied, 04-1560, 04-1498 (La. 10/1/04), 883 So.2d 992, 1008 . In the present

case, there was no evidence presented that Mr. Broussard was fully aware when he

signed the residential lease that he was assuming all liability for injury to his neighbor

caused by a condition in the common area. We find the trial court erred in finding,

as a matter of law, Ms. Lyles and Shelter, is absolved of all potential responsibility

to the Owens based on the terms of the lease with Mr. Broussard on 110 Brownlee.

Accordingly, we reverse the decision of the trial court granting the summary

judgment dismissing Ms. Lyles, as to 110 Brownlee, and her insurer, Shelter Mutual

Insurance Company.

DECREE

Based on the foregoing review of the record, we reverse the judgment of the

trial court granting summary judgment in favor of Cathy Lyles, as to 110 Brownlee,

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and her insurer, Shelter Mutual Insurance Company. All costs of this appeal are

assessed to Shelter Mutual Insurance Company and Cathy Lyles.

REVERSED.

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