Jean B. Richard, Jr. v. Anna Thibodeaux

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-301

JEAN B. RICHARD, JR.

VERSUS

ANNA THIBODEAUX, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 06-C-4614-A
HONORABLE JAMES PAUL DOHERTY JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE
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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

Gary J. Ortego
Attorney at Law
P. O. Drawer 810
Ville Platte, LA 70586
Counsel for Plaintiff/Appellant:
Jean B. Richard, Jr.

Timothy Alan Maragos
Caffery Plaza, Suite 100
4023 Ambassador Caff. Pkwy
Lafayette, LA 70503
Counsel for Defendant/Appellee:
State Farm Fire & Casualty Co.

PICKETT, J.

The plaintiff, Jean B. Richard, Jr., appeals a judgment of the trial court

dismissing his suit for personal injuries via a motion for summary judgment filed by

the defendants, Anna Thibodeaux, and her insurer, State Farm Fire and Casualty

Company. We affirm the judgment of the trial court.

FACTS

The facts in this case are not in dispute. The defendant, Anna Thibodeaux,

hired Kenneth Fontenot to repair leaks in her tin roof. Fontenot, in turn, hired two

relatives, the plaintiff and a second man, to apply “cool seal” to the roof. Fontenot

and the two men ascended to the roof so Fontenot could explain how he wanted the

work done. Then, Fontenot climbed down to do some preparatory work (i.e., mix the

cool seal). The two men on the roof took turns doing the work—one holding the

bucket of cool seal and the other applying the product with a mop. According to the

plaintiff, he was applying the product when he caught his pant leg on a nail or screw

protruding from the roof. In attempting to free his pant leg, he lost his balance and

“went sliding down and fell off the roof.”

LAW AND DISCUSSION

In Louisiana Pigment Co., L.P. v. Scott Construction Co., Inc., 06-1026, p. 6

(La.App. 3 Cir. 12/20/06), 945 So.2d 980, 983, this court addressed the standard of

review in cases decided by summary judgment stating:

Appellate courts review summary judgments de novo and use the
same criteria as the trial court in determining whether summary
judgment is appropriate. Nguyen v. Underwriters at Lloyd’s, 05-1407
(La.App. 3 Cir. 5/3/06), 929 So.2d 821, writ denied, 06-1332
(La.9/22/06), 937 So.2d 387. Pursuant to La.Code Civ.P. art. 966(B),
summary judgment is appropriate “if the pleadings, depositions, answers

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to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to material fact, and that
the mover is entitled to judgment as a matter of law.”

Louisiana Code of Civil Procedure Article 966
charges the moving party with the burden of proving that
summary judgment is appropriate. However, when the
movant will not bear the burden of proof at trial on the
matter that is before the court, the movant’s burden on the
motion does not require him to negate all of the essential
elements of the adverse party's claim, but rather to point
out to the court that there is an absence of factual support
for one or more of the elements essential to the adverse
party’s claim. See La.Code Civ.P. art. 966(C)(2). If the
adverse party fails to produce factual support to convince
the court that he can carry his burden of proof at trial, there
is no genuine issue of material fact and granting of the
motion is mandated. Hardy v. Bowie, 98-2821 (La.9/8/99),
744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir.
12/26/96), 685 So.2d 691, writ denied, 97-281
(La.3/14/97), 690 So.2d 41.

Nguyen at 823.

Additionally, we find the following from McCoy v. Liberty Mutual Life

Insurance Co., 42,118, pp.4-7 (La.App. 2 Cir. 5/9/07), 956 So.2d 802, 805-06, most

instructive:

This case presents a negligence claim. La. C.C. art. 2317 states
that persons are responsible for damages caused by things in their
custody. The Civil Code further states this principle with regard to the
owners of buildings in Article 2322, as follows:

The owner of a building is answerable for the damage
occasioned by its ruin, when this is caused by neglect to
repair it, or when it is the result of a vice or defect in its
original construction. However, he is answerable for
damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known of the 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. . . .

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As a part of the 1996 tort revision, the law of strict liability was
altered by the addition of the requirement of knowledge on the part of
the owner or custodian of the thing. See Jackson v. Gardiner, 34,643
(La.App.2d Cir.4/4/01), 785 So.2d 981. This revision establishes a
negligence standard where the owner’s duty is to exercise reasonable
care to recognize and repair or remove a vice or defect in the building
which presents an unreasonable risk of harm to others. Id. at 985.

A defect under Article 2322 cannot be inferred simply because an
accident occurred. Carroll v. Holt, 36,615 (La.App.2d Cir.12/11/02),
833 So.2d 1194; see Sanders v. Bain, 31,362 (La.App.2d Cir.12/9/98),
722 So.2d 386; Dufour v. E-Z Serve Convenience Stores, Inc., 98-996
(La.App. 5th Cir.3/30/99), 731 So.2d 915. The question of a defect
turns on whether the thing presents an unreasonable risk of harm. There
is no fixed rule for determining whether the thing presents an
unreasonable risk of harm. To assist the trier-of-fact, many factors are
to be considered and weighed, including: (1) the claims and interests of
the parties; (2) the probability of the risk occurring; (3) the gravity of
the consequences; (4) the burden of adequate precautions; (5)
individual and societal rights and obligations; and (6) the social utility
involved. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765
So.2d 1002, 1012; Pepper v. Triplet, 03-0619 (La.1/21/04), 864 So.2d
181, 190. The method for determining whether a thing under garde
poses an unreasonable risk of harm is similar to that of taking into
account all of the social, moral, economic and other considerations as
would a legislator regulating the matter, and the analysis is virtually
identical to the risk-utility balancing test used in both negligence and
product liability theories. Pepper v. Triplet, supra.

The owner of a building cannot be held responsible for all injuries
resulting from any risk posed by his building, only those caused by an
unreasonable risk of harm to others. Entrevia v. Hood, 427 So.2d 1146,
1149 (La.1983). Where a risk of harm is obvious, universally known
and easily avoidable, the risk is not unreasonable. Jackson, supra.

Jackson, supra, involved a damaged roof and a fall by an
inspector of the roof. As in the present case, this court determined that
the facts regarding the condition of the premises and the accident were
undisputed so that summary judgment was appropriate. In determining
no unreasonable risk of harm, we noted that the injured plaintiff was not
an innocent passerby or guest, but one who had contracted services
regarding the defective roof in question. Additionally, the damaged roof
with recent storm debris remaining on its surface presented an obvious
risk that the plaintiff chose to encounter. We concluded that plaintiff
“did not show how the risk posed by the obviously dangerous condition

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of the building's roof, resulting from the storm damage, presented an
unreasonable risk of harm.” Id. at 986.

In similar cases involving construction site accidents or work on
buildings, courts have found no unreasonable risk of harm where the
temporary condition of the work in progress made the risk obvious.
Barron v. Webb, 29,707 (La.App.2d Cir.8/20/97), 698 So.2d 727;
Dauzat v. Thompson Const. Co., Inc., 02-989 (La.App. 5th Cir.1/28/03),
839 So.2d 319; McCart v. Sears, Roebuck and Co., 460 So.2d 1104
(La.App. 2d Cir.1985). The rationales of Barron and Dauzat did not
expressly employ the utility/risk analysis to the ongoing temporary
conditions of the construction site finding that such risky conditions do
not constitute a building defect as contemplated by Civil Code Article
2322. [However, we find employing that analysis would result in the
same outcome.] “There is no liability for ‘ruin’ during the construction
of a building.” Dauzat, supra at 322.

In his deposition, the plaintiff stated that he had done one or two cool seal jobs

before, but didn’t remember encountering protruding nails or screws. He said that

none of the repair crew had checked for nails or screws protruding from the roof

before they started the job. However, he said that after he fell and the workers

returned to the roof, an inspection revealed a number of screws “sticking out, so they

had to go re-screw those screws down.”

In another case decided by this court involving a workman repairing a roof, this

court stated the following;

The facts of this case present a repairman making repairs in an
area that presented an obvious risk of harm. The body of jurisprudence
interpreting strict liability and/or negligence under these circumstances
is well established. An owner is not liable for injury which results from
a condition which should have been observed by the plaintiff in the
exercise of reasonable care or which was obvious. Eldridge, supra;
David v. Reon, 520 So.2d 820 (La.App. 3rd. Cir.1987), writ denied,
522 So.2d 564 (La.1988).

Desormeaux v. Audubon Ins. Co., 611 So.2d 818, 820-21 (La.App. 3 Cir.1992), writ

not considered, 613 So.2d 966 (La.1993), writ denied, 613 So.2d 1002 (La.1993).

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“In determining whether a defect or unreasonable risk of harm is present, the

jurisprudence notes that the defect must be of such a nature as to constitute a

dangerous condition which would reasonably be expected to cause injury to a prudent

person using ordinary care under the circumstances.” Durmon v. Billings, 38,514, p.

7 (La.App. 2 Cir. 5/12/04), 873 So.2d 872, 876-77, writ denied, 04-1805 (La.

1029/04), 885 So.2d 588.

In the instant case, the plaintiff had experience as a roofer and was working

with two more experienced roof repairmen. Had these repairmen used ordinary care,

i.e., inspected the roof for possible problems before they started to apply the cool seal,

the accident would not have happened.

In order to find liability on the part of the defendant, we do not consider the

plaintiff’s subjective awareness of the risk encountered, but rather we must make the

determination that the defendant acted unreasonably vis-a-vis the plaintiff, or caused

injury to the plaintiff via an unreasonably dangerous situation/instrument within his

control. The undisputed facts and the deposition testimony in this case do not support

a finding of liability.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against the plaintiff/appellant, Jean B. Richard.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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