Louis Robinson, Jr. v. Tylan Meaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-374 consolidated with 09-375 & 09-376

LOUIS ROBINSON, JR.

VERSUS

TYLAN MEAUX, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20065173 C/W 20065746 C/W 20073298
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

REVERSED AND REMANDED.

L. Katherine A. Theunissen
Mahtook & Lafleur
P. O. Box 3089
Lafayette, LA 70502
Counsel for Defendant/Appellant:
Lafayette Consolidated Government

Don J. Hernandez
Christopher Siegrist
P. O. Box 24
Franklin, LA 70538
Counsel for Plaintiff/Appellant:
Louis Robinson, Jr.

Edward B. Jones
Edward B. Jones & Associates
P. O. Drawer 1807
Patterson, LA 70392
Counsel for Plaintiff/Appellant:
Louis Robinson, Jr.

James Alan Harrell
Heather S. Duplantis
Karen Blakemore
Phelps Dunbar
P. O. Box 4412
Baton Rouge, LA 70821-4412
Counsel for Intervenor/Appellant:
Lafayette Specialty Hospital, LLC

Thomas R. Hightower Jr.
Patrick Wade Kee
Michael S. Harper
Attorneys at Law
P. O. Drawer 51288
Lafayette, LA 70505
Counsel for Defendant/Appellee:
Lil D’s Bar-B-Que, LLC

PICKETT, JUDGE.

One of the defendants in the suit before us, Lil D’s Bar-B-Que, L.L.C., filed a

motion for summary judgment, arguing that under the law and the facts in the case,

it was not liable for the accident which caused the plaintiff’s injuries. The plaintiff,

Louis Robinson, and defendants, Tylan Meaux, Rodney Guilbeau, Allstate Insurance

Co.(Guilbeau’s insurer), Lafayette Consolidated Government, and Champions’

Express Mart, Inc., Federated Mutual Insurance Company(Champions’ insurer), and

intervenors, Louisiana Department of Health & Hospitals and Lafayette Specialty

Hospital, opposed the motion. The trial court found in favor of Lil D’s, granted the

motion for summary judgment and dismissed Lil D’s from the suit. Several of the

opposing parties appeal. We reverse the judgment of the trial court and remand the

case for further proceedings.

FACTS

On August 1, 2006, at approximately 11:45 p.m., a pick-up truck/bicycle

accident occurred in the 1300 block of U.S. Highway 90/Southeast Evangeline

Thruway in the City and Parish of Lafayette. After making a left-hand turn onto

Evangeline from Pinhook Road, the 1997 Ford Ranger being driven by Tylan Meaux,

and owned by Rodney Guilbeau, went out of control, flipped several times and struck

Louis Robinson, Jr., who was riding his bicycle on the sidewalk. As a result of the

accident, Louis Robinson Jr. was severely injured and is now a quadriplegic.

Meaux’s passenger in the truck, Julian Mayard, was ejected from the vehicle and

suffered multiple injuries. It is alleged that one factor contributing to the accident

was the presence of a greasy sludge on the roadway.

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The plaintiffs, Robinson and Mayard, sued, among others, Lil D’s Barbeque

which operates a business in a facility owned or leased by Champion’s Express Mart,

Inc., at 1139 U.S./Southeast Evangeline Thruway. The plaintiffs claim that one or

both businesses created a dangerous condition at the site of the accident by

negligently discharging a hazardous substance (grease) into the sewer/drainage

system of the City and Parish of Lafayette. They claim that the grease created a

dangerous condition on the roadway. Plaintiffs also sued the Lafayette Consolidated

Government (LCG) claiming it had prior notice of conditions at the site of the

accident and had been tolerant of the continuing discharge of grease into the

sewer/drainage system.

In response to claims that Lil D’s was responsible for the accident because a

defective grease trap caused the presence of a greasy sludge on the roadway, Lil D’s

filed a motion for summary judgment. Lil D’s argued that under the plaintiffs’

theories of liability—La.Civ.Code arts. 2315, 2317 and 2317.1, it was entitled to

summary judgment. Lil D’s argued that the record failed to show that it “knew or, in

the exercise of reasonable care, should have known” of any problem with the grease

trap which caused the accident, and that the accident could have been prevented by

the exercise of reasonable care, and that Lil D’s failed to exercise such reasonable

care. The trial court granted Lil D’s motion for summary judgment, dismissing it

from the suit and the plaintiffs, the remaining defendants and the intervenors appeal.

LAW AND DISCUSSION

The articles governing summary judgment can be found in La.Code Civ.P. art.

966 and art. 967. In Bridges v. City of Carenco, 07-1593 (La.App. 3 Cir. 4/30/08),

982 So.2d 306 (citations omitted)(emphasis in original), this court recounted the law

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applicable to the review of the trial court’s grant of a motion for summary judgment

as follows:

The law applicable to summary judgments and to the appellate
review thereof is well settled:

The summary judgment procedure is designed to
secure the just, speedy, and inexpensive determination of
every action, except those disallowed by law; the
procedure is favored and must be construed to accomplish
these ends. The motion should be granted only if the
pleadings, depositions, answers to interrogatories and
admissions on file, together with affidavits, show that there
is no genuine issue of material fact and that the mover is
entitled to judgment as a matter of law. The burden of
proof remains with the mover. However, if the party
moving for summary judgment will not bear the burden of
proof at trial on the matter that is before the court on the
motion for summary judgment, then that party need not
negate all essential elements of the adverse party’s claim,
action, or defense but may simply 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; thereafter, if the adverse party fails to produce
factual support sufficient to establish that it will be able to
satisfy the evidentiary burden of proof at trial, there is no
genuine issue of material fact. When a motion is made and
supported, as required by La. C.C.P. art. 966, an adverse
party may not rest on the mere allegations or denials of his
pleadings, but his response must set forth specific facts
showing a genuine issue for trial. Otherwise, summary
judgment, if appropriate, shall be rendered against him.

Appellate courts review summary judgments de novo
under the same criteria that govern a district court’s
consideration of whether summary judgment is appropriate.

In the case sub judice, the plaintiff’s theories of liability are based upon

La.Civ.Code arts. 2315(A), 2317 and 2317.1.

Louisiana Civil Code Article 2315(A) states: “Every act whatever of man that

causes damage to another obliges him by whose fault it happened to repair it.”

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Louisiana Civil Code Article 2317.1 states: “ We are responsible, not only for

the damage occasioned by our own act, but for that which is caused by the act of

persons for whom we are answerable, or of the things which we have in our custody.

This, however, is to be understood with the following modifications.”

Louisiana Civil Code Article 2317.1 states:

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. Nothing in this Article shall preclude the
court from the application of the doctrine of res ipsa loquitur in an
appropriate case.

We find La.Civ.Code art. 2322 also applicable to this case. Louisiana Civil

Code Article 2322 states:

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. Nothing in this Article shall preclude the court from
the application of the doctrine of res ipsa loquitur in an appropriate case.

Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591, pp. 3-4 (La.App. 3 Cir.

11/5/08), 997 So.2d 814, 817 tells us that:

The addition of the language to article 2317.1 that an owner is
liable for damage “only upon a showing that he knew or, in the exercise
of reasonable care, should have known of the ruin, vice, or defect” has
effectively turned it from a claim based upon strict liability to a claim
grounded in negligence. See Monson v. Travelers Prop. & Cas. Ins.
Co., 06-921 (La.App.5 Cir. 4/24/07), 955 So.2d 758; Leonard v. Parish
of Jefferson, 05-32 (La.App. 5 Cir. 4/26/05), 902 So.2d 502; and
Bourquard V. Winn Dixie La. Inc., 04-1150 (La.App. 5 Cir. 3/1/05), 900
So.2d 131.

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Accordingly, to prevail in [his] claim, the plaintiff [must] prove
the following: (1) that the thing which caused the damage was in the
defendant’s custody or control, (2) that it had a vice or defect that
presented an unreasonable risk of harm, (3) that the defendant knew or
should have known of the vice or defect, (4) that the damage could have
been prevented by the exercise of reasonable care, and (5) that the
defendant failed to exercise such reasonable care. If the plaintiff fails
to provide proof any one of these elements, his . . . claim fails.

Our de novo review of the record convinces us that the trial court was in error

in granting summary judgment in favor of Lil D’s. The law is perfectly clear, a

motion for summary judgment should ONLY be granted “if the pleadings,

depositions, answers 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

mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966 (emphasis

ours).

We find there are numerous issues of material fact in dispute in this suit which

preclude Lil D’s dismissal via summary judgment. Some examples of disputed issues

are the following:

Did Lil D’s have garde over the grease trap? The lease between Lil D’s and

Champion’s is silent as to who had the responsibility to maintain the grease trap.

While the LCG ordinance which was in effect at the time Champion’s built the grease

trap placed responsibility for its maintenance on the “owner,” it is undisputed that Lil

D’s scheduled the maintenance.

Was the grease trap defective? There is no evidence in the record that between

the October 2005 stoppage and the accident at issue the grease trap had been the

subject of a comprehensive examination. Several people (John Johnson, a LCG

inspector, Jody Broussard, the person who pumped out the trap, etc.) had looked into

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the trap, but because of the small opening, the lack of light, etc., it was impossible

determine if the trap was defective. The person who serviced the trap did state that

the trap appeared to be working and appeared to be keeping up with the grease.

Did Lil D’s know or have reason to believe the trap was defective? The record

indicates that there was a stoppage in the sewer line in October 2005. LCG’s

inspection of the sewer line confirmed that the stoppage was cause by grease in the

line. At that time Mr. Johnson indicated to Lil D’s the possibility that the grease trap

was not operating properly and suggested that the trap be timely inspected and that

Lil D’s have the grease trap cleaned out more often. Thus, it appears that there is a

genuine issue concerning Lil D’s knowledge of a possible defect in the grease trap.

Could the accident have been prevented by the exercise of reasonable care?

Although Lil D’s had the trap pumped out within a week’s time, the record does not

reflect that it began a more frequent pumping schedule. If, in fact, one cause of the

accident was grease escaping from a defective grease trap, then it would appear that

more frequent pumping may have been one way to forestall a build up of grease in the

sewer line.

Finally, there is the question of whether Lil D’s failed to exercise reasonable

care. If grease from Lil D’s proves to be a cause in fact of the accident, then this

question is paramount.

In sum, we find that the pleadings, depositions, answers to interrogatories, and

admissions and the affidavits fail to establish a lack of genuine issues of material

facts which would entitle Lil D’s to a summary judgment.

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Accordingly, for the reasons stated, the judgment of the trial court is reversed,

the motion for summary judgment is denied, and the case is remanded for further

proceedings. All costs of this appeal are assessed against the appellee, Lil D’s.

REVERSED AND REMANDED.

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