Simin Mirtaheri v. John N. Rhodes

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1264

SIMIN MIRTAHERI, ET AL.

VERSUS

JOHN N. RHODES, ET AL.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 227,332
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

**********

OSWALD A. DECUIR
JUDGE

**********

Court composed of John D. Saunders, Oswald A. Decuir, and Billy Howard Ezell,
Judges.

REVERSED AND REMANDED.

Bonita Preuett-Armour
Rebecca Boyett
Armour Law Firm
1744 Jackson Street
Alexandria, LA 71301
(318) 442-6611
Counsel for Defendants/Appellees:
John N. Rhodes
Michael Marzullo
Dr. John N. Rhodes, APMC
Rhodes Land Company, L.L.C.
Rhodes Pediatric Clinic

George D. Fagan
Marc E. Devenport
Leake & Anderson, LLP
1100 Poydras, Suite 1700
New Orleans, LA 70163
(504) 585-7500
Counsel for Plaintiffs/Appellants:
Simin Mirtaheri
Morteza Shamsnia

DECUIR, Judge.

Simin Mirtaheri appeals a judgment of the trial court granting summary

judgment in favor of Rhodes Land Company, L.L.C.

FACTS

On March 8, 2006, Amanda Barnett, the mother of a pediatric patient of

Rhodes Pediatric Clinic, drove her vehicle from the clinic’s parking lot over a curb

and across seven and one-half feet of grass into a building owned by Simin Mirtaheri

(Mirtaheri). The clinic leased the parking lot from Rhodes Land Company, L.L.C.

(Rhodes). Mirtaheri filed suit against Rhodes to recover for damage sustained to her

building. Rhodes filed a motion for summary judgment which was granted by the

trial court.

Mirtaheri lodged this appeal assigning five errors which may be summarized

as the trial court erred as a matter of law in granting summary judgment in this case.

DISCUSSION

An appellate court reviews summary judgments de novo, applying the same

criteria as the district court in determining whether summary judgment is appropriate.

Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991).

A motion for summary judgment is properly granted when the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any,

show there is no genuine issue as to material facts, and the mover is entitled to

judgment as a matter of law. La.Code Civ.P. art. 966(B).

In this case, the trial court granted summary judgment because it believed that

Rhodes owed no duty to Mirtaheri under the facts alleged. Our review brings us to

the same issue. In Parish v. L.M. Daigle Oil Co., Inc., 98-1716 (La.App. 3 Cir.

6/23/99), 742 So.2d 18, this court discussed at length whether a per se rule should be

utilized in determining the duty of the owner of an establishment with regard to

accidents caused by third parties operating vehicles in the owner’s parking lot. The

court specifically declined to approve a rule that would assert that “the defendant

business satisfied its duty where: (1) it provided a protective sidewalk with two-inch

curb; and (2) it demonstrated that there were no prior, similar accidents at that

location.” Id. at 24 “(quoting Molinares v. El Centro Gallego, Inc., 545 So.2d 387,

388 (Fla. 3d DCA), review denied, 557 So.2d 866 (Fla. 1989) (emphasis removed.))

Admittedly, the case at hand is different than Parish in that it involves damage

to neighboring property rather than a patron on the owners’ property. However, the

fourth circuit has extended a duty to the owner of a parking lot for damage to

neighboring property. See Varnado v. Southern University at New Orleans, 95-2619

(La.App. 4 Cir. 5/1/96), 673 So.2d 1289, writ denied, 96-1378 (La. 9/3/96), 678

So.2d 556.

We specifically decline to extend that duty to this case. However, we find that

there are genuine issues of material fact in dispute with regard to the nature of the

parking lot curbing, compliance with applicable standards, setbacks, and wheel

blocks, etc. Accordingly, summary judgment is not appropriate in this case.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed and the

case is remanded for further proceedings. All costs of this appeal are taxed to Rhodes

Land Company, L.L.C.

REVERSED AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

2