David Trahan v. Robert Guidry

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-1501

DAVID TRAHAN

VERSUS

ROBERT GUIDRY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20080062
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and David E. Chatelain,
Judges.

AFFIRMED.

Larry Lane Roy
Elizabeth A. Hunt
Preis & Roy
P. O. Drawer 94-C
Lafayette, LA 70509
(337) 237-6062
Counsel for Defendant/Appellee:
Southwest Louisiana Electric Membership Corporation

*Honorable David E. Chatelain participated in this decision by
appointment of the Louisiana Supreme Court as Judge Pro Tempore.

Gregg Arthur Wilkes
Phyllis Joan Bradshaw Hennessee
Cook, Yancey, King & Galloway
Post Office Box 22260
Shreveport, LA 71120-2260
(318) 221-6277
Counsel for Defendants/Appellees:
Robert Guidry
Shelter Mutual Insurance Company
Faye Hebert

Stephen Robert Barry
Wendell Robert Verret
Barry & Piccione
405 West Main Street
Lafayette, LA 70501
(337) 237-2889
Counsel for Plaintiff/Appellant:
David Trahan

Alyse Richard
Preis & Roy
102 Versailles Blvd., Suite 400
Lafayette, LA 70509
(337) 237-6062
Counsel for Defendant/Appellee:
Southwest Louisiana Electric Membership Corporation

EZELL, JUDGE.

David Trahan appeals the trial court’s grant of summary judgment in favor of

Robert Guidry, Faye Hebert, and Shelter Mutual Insurance Company (Shelter). For

the following reasons, we hereby affirm the decision of the trial court.

Around 9:30 p.m. on January 4, 2007, a house fire was reported in a house

owned by Mr. Guidry and Ms. Hebert. Mr. Trahan had leased the house with his

wife, who lived in the home with the couple’s child and two children from Mrs.

Trahan’s prior marriage. Mrs. Trahan and the three children were home when the fire

started. Tragically, all four died as a result of carbon monoxide poisoning while

asleep in their beds. Mr. Trahan filed this current suit against Mr. Guidry, Ms.

Hebert, and their insurer, Shelter, alleging that defects in the home caused the fire.

The Defendants filed a motion for summary judgment, which was granted by the trial

court, who found no defect in the home. From that decision, Mr. Trahan appeals.

Mr. Trahan asserts four assignments of error on appeal. He claims that the trial

court erred in failing to find a genuine issue of material fact as to the strict liability

of the Defendants; that the trial court erred in failing to find a genuine issue of

material fact related to the absence of carbon monoxide detectors in the home; that

the trial court erred in failing to find a genuine issue of material fact regarding the

cause of the fire; and that the trial court erred in failing to apply the doctrine of res

ipsa loquitor to the case.

We will address Mr. Trahan’s second and third assignments of error together,

as they deal with the same issue, that the trial court failed to find a genuine issue of

material fact as to any defect existing in the home which caused the fire. We will

address this first because our determinations on this issue will affect our ruling on Mr.

Trahan’s first assignment of error.

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Summary judgments are reviewed de novo on appeal, with the
reviewing court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate; whether
there is any genuine issue of material fact, and whether the movant is
entitled to judgment as a matter of law. Power Marketing Direct, Inc.
v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 669; Smith v. Our Lady
of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.

A motion for summary judgment will 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. Proc. art. 966(B).

La. Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 09-

23, p.5 (La. 6/26/09), 17 So.3d 350, 353.

Mr. Trahan claims that there exist genuine issues of material facts as to defects

in the home which caused the fire. He alleges that outdated wiring, the absence of

carbon monoxide detectors, or the home’s metal roof created defects which led to this

tragedy. However, the record before this court contains no evidence in support of this

allegation. To the contrary, the consensus among the investigators examining the

case was that a fire started in the home’s living room at the location of the Trahan’s

entertainment center. While the cause of the fire was undeterminable, all three

experts agreed that an electrical appliance was the most likely cause of the fire. All

the electronic equipment in the home was owned by the Trahans. Three reasons were

put forth by all experts for the initial failure of whatever appliance malfunctioned,

including an electrical surge caused by a nearby lightning strike, a transformer failure,

or both. The evidence in the record shows that all three experts investigating the fire

determined that the home’s wiring was in no way responsible for the ignition of the

fire, including Mr. Trahan’s own expert, who found that “the cause of the loss was

a defect in the Slemco transformer that resulted in damage to the building

appliances.”

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Moreover, while Mr. Trahan puts forth standards of the National Fire

Prevention Association as some proof that the lack of a carbon monoxide detector

was a defect, the authority cited is merely the standards required of manufacturers

and/or installation contractors in correctly installing carbon monoxide detectors. He

asserts no building code, state regulation, jurisprudence, or even expert opinion that

carbon monoxide detectors are required, or that any absence thereof constitutes a

defect. This likewise applies to Mr. Trahan’s allegation that the home’s metal roof

constituted a defect. Furthermore, the home was equipped with functioning smoke

detectors, as testified to by Mrs. Trahan’s mother. Simply put, the Defendants

supported their motion for summary judgment with evidence establishing a lack of

factual support for an essential element of Mr. Trahan’s claim, that there was a defect

in the home. Mr. Trahan then failed to rebut this evidence in any way. In fact, his

own expert rendered findings contrary to his assertions. The trial court did not

commit error in finding that Mr. Trahan did not introduce any evidence of a defect

in the home.

Mr. Trahan next claims that the trial court erred in not holding the Defendants

to a strict liability standard under La.Civ.Code arts. 2696 and 2697, rather than an

ordinary negligence standard. The Defendants counter that under Moore v. Oak

Meadows Apartments, 43-620 (La.App. 2 Cir. 10/22/08), 997 So.2d 594, strict

liability is no longer applicable to tort claims between a lessor and lessee. However,

we need not address the issue as to which standard applies in this matter because, as

noted in a case cited by Mr. Trahan, McGinty v. Pesson, 96-850, p.6 (La.App. 3 Cir.

12/11/96), 685 So.2d 541, 544, under strict liability “[t]o recover . . . the lessee must

prove by a preponderance of the evidence that a defect existed on the premises and

that such defect was the cause of her damages or losses.” As noted above, Mr.

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Trahan did not prove that any defect existed in the home, and therefore, could not

recover under either theory, rendering this assignment of error moot.

Finally, Mr. Trahan claims that the trial court erred in failing to apply the

doctrine of res ipsa loquitor. Again, we disagree. Res ipsa loquitur is applicable

when the circumstances surrounding an accident are so unusual as to give rise to an

inference of negligence or liability on the part of the defendant and that, under such

circumstances, the only reasonable and fair conclusion is that the accident resulted

from a breach of duty or omission on the part of the defendant. Cangelosi v. Our

Lady of the Lake Reg’l Med. Ctr., 564 So.2d 654 (La.1989).

Res ipsa loquitor is an evidentiary doctrine that requires a
defendant to exculpate himself from an inference of negligence. Cherry
v. Herques, 623 So.2d 131 (La.App. 1 Cir.1993). It applies when: the
accident would not normally occur in the absence of negligence, there
exists an absence of direct evidence to explain the activities leading to
the injury, and the accident or injury was caused by an agency or
instrumentality within the actual or constructive control of the
defendant. Id.

Walston v. Lakeview Reg’l Med. Ctr., 99-1920, p. 6 (La.App. 1 Cir. 9/22/00), 768

So.2d 238, 242, writ denied, 00-2936 (La. 12/15/00), 777 So.2d 1229.

Res ipsa loquitor is not applicable in this matter because the evidence in this

matter does, in fact, point to an explanation for the cause of the fire. More

importantly, that explanation is that the fire occurred directly for reasons other than

the negligence of the Defendants. The trial court was correct in not applying the

doctrine of res ipsa loquitor and in granting the Defendant’s motion for summary

judgment.

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

of this appeal are hereby assessed against David Trahan.

AFFIRMED.

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

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