Opinion
2021-C-0238
05-09-2022
OTIS JONES v. WHIPS ELECTRIC, LLC, AFRICK CONSTRUCTION, LLC, PARADISE POOLS AND SPAS, INC., AND GREGORY BROWNE
JUSTIN E. ALSTERBERG 935 Gravier Street, Suite 2020 New Orleans, Louisiana 70112 -and-EVE S. REARDON REARDON LAW FIRMCounsel for Plaintiff/Relator Otis Jones JOSHUA G. KELLER ISAAC H. RYAN DEUTSCH KERRIGAN, LLP Counsel for Appellants/Respondents Gregory Brown and AIG Property Casualty Company
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-04000, DIVISION "F-14" Honorable Jennifer M Medley,
JUSTIN E. ALSTERBERG 935 Gravier Street, Suite 2020 New Orleans, Louisiana 70112 -and-EVE S. REARDON REARDON LAW FIRMCounsel for Plaintiff/Relator Otis Jones
JOSHUA G. KELLER ISAAC H. RYAN DEUTSCH KERRIGAN, LLP Counsel for Appellants/Respondents Gregory Brown and AIG Property Casualty Company
Court composed of Chief Judge Terri F. Love, Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Pro Tempore Lynn M. Luker
LOVE, J., CONCURS WITH REASONS
BELSOME, J., DISSENTS
JENKINS, J., DISSENTS FOR REASONS ASSIGNED BY J. BELSOME
LYNN M. LUKER, JUDGE PRO TEMPORE
This matter is before the Court on remand from the Louisiana Supreme Court. Defendants, Gregory Browne and his homeowner's insurance company, AIG Property Casualty Company (collectively "Browne"), seek supervisory review of the trial court's March 30, 2021 judgment denying their motion for summary judgment. For the reasons that follow, the writ application is denied.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On May 1, 2017, Browne, while residing in Texas, purchased a home at 1019 Webster Street in New Orleans. Extensive renovations to the interior and exterior of the property began in December 2017. Browne and his wife, Harriet Riley ("Riley"), moved into the home on June 1, 2018, after the renovations were substantially complete.
In connection with the renovations, Browne hired Paradise Pools and Spas, Inc. ("Paradise Pools") for the construction of a new pool, and Africk Construction, LLC ("Africk Constr.") as the general contractor. Africk Constr. subcontracted with Whips Electric, LLC ("Whips Electric") for the electrical work on the project and Billy Keyes Construction ("Keyes Constr.") for the cement work. Otis Jones ("plaintiff") worked as a cement finisher for Keyes Constr.
On May 18, 2018, plaintiff was finishing the edges of the newly poured cement driveway/patio when his arm touched an exposed live electrical wire. Plaintiff sustained injuries as a result of the electrical shock. The wire in question was protruding from a junction box located on a pillar next to the driveway/patio.
Plaintiff filed a petition for damages against Whips Electric, Africk Constr. and Paradise Pools. The petition was later amended to name Browne. Riley was not named as a defendant. The petition alleges negligence against the various contractors and premise liability claims against Browne, including failure to maintain the property, creating an unreasonably dangerous condition, failure to remedy the condition and failure to warn.
Browne filed a motion for summary judgment, asserting that: 1) the law provides immunity to a homeowner for the negligence of an independent contractor who is performing work on the home; and 2) Browne had no duty to warn of the open and obvious condition. Plaintiff opposed the motion, arguing that homeowner immunity does not apply where the damages stem from a defect in the property. Plaintiff also argued that genuine issues of material fact exist that would preclude summary judgment.
The motion for summary judgment was denied from the bench. Judgment was rendered on March 30, 2021. As reasons for judgment, the trial court simply adopted, "in toto," plaintiff's memorandum in opposition to the motion for summary judgment.
Browne filed a writ application with this Court, which was denied in a 3-2 decision. The Louisiana Supreme Court granted a writ of certiorari and remanded the matter for briefing, oral argument and full opinion. After following the directives of the Supreme Court, we render the following opinion.
Paradise Pools' motion for summary judgment was denied on August 6, 2021. This Court denied the writ application. See Jones v Whips Electric, LLC., unpub. 21-569 (La.App. 4 Cir. 11/2/21), writ denied 21-01795 (La. 2/22/22), 333 So.3d 448. We also note that Africk Constr. and Whips Electric's motions for summary judgment were granted on January 15, 2021. An appeal to this Court was lodged on February 14, 2022, and has been assigned case number 22-0095.
SUMMARY JUDGMENT PRINCIPLES AND STANDARD OF REVIEW
Appellate courts review the grant or denial of a motion for summary judgment de novo, employing the same criteria that govern a trial court's determination of whether summary judgment is appropriate. Maddox v. Howard Hughes Corp., 19-0135, p. 4 (La.App. 4 Cir. 4/17/19), 268 So.3d 333, 337 (citation omitted).
The standard for granting a motion for summary judgment is set forth in La. C.C.P. art. 966 (A)(3) which provides, in pertinent part, "a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law."
As this Court recognized in Bercy v 337 Brooklyn, LLC, 20-0583, pp. 3-4 (La.App. 4 Cir. 3/24/21), 315 So.3d 342, 345, writ denied, 21-00564 (La. 6/22/21), 318 So.3d 698,
La. C.C.P. art. 966(D)(1) provides that on a motion for summary judgment, although the burden of proof rests with the mover, if the mover will not bear the burden of proof at trial, the mover must only point out the absence of factual support for one or more elements essential to the adverse party's claim. The burden then shifts to the adverse party who has the burden to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
A genuine issue of material fact is one as to which reasonable persons could disagree, "if on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "A fact is material when its existence or nonexistence may be essential to the plaintiffs [sic] cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Chapital v. Harry Kelleher & Co., Inc., 13-1606, p. 5 (La.App. 4 Cir. 6/4/14), 144 So.3d 75, 81. Whether a fact is material is a determination that must be made based on the applicable substantive law. Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La.App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Smith, 93-2512, p. 27, 639 So.2d at 751).
LAW AND ANALYSIS
In this application for supervisory writs, Browne argues that the trial court erred in denying the motion for summary judgment because there is no evidence that Browne had constructive knowledge of the exposed electrical wire. Plaintiff counters, asserting that Browne is raising this issue for the first time on appeal. Specifically, plaintiff points out that Browne argued only two defenses in the trial court, i.e., homeowner immunity and no duty to warn because the exposed wire was open and obvious. Thus, plaintiff maintains that Browne should be estopped from raising the "constructive knowledge" defense in this writ application, as the two positions are mutually inconsistent. We disagree.
We recognize that "[a]n appellate court generally finds it inappropriate to consider an issue raised for the first time on appeal when that issue was not pled, urged, or addressed in the court below." Bixby v Arnold, 19-0477, p. 14 (La.App. 4 Cir. 12/5/19), 287 So.3d 43, 52 (quoting Crosby v. Sahuque Realty Company, Inc., 17-0424, p. 7 (La.App. 4 Cir. 12/28/17), 234 So.3d 1190, 1196). However, in the present case, the record demonstrates that the issue of premise liability was presented to the trial court for consideration, starting with the claims set forth in the petition for damages. Additionally, Browne acknowledged in his motion for summary judgment that plaintiff's claims are based on custodial liability. Browne also specifically asserted in his reply memorandum that "[P]laintiff cannot show that the homeowners knew or should have known of the exposed electrical wires." Clearly, Browne is not raising this defense for the first time on appeal.
Moreover, the record before us contains all information necessary to evaluate the premise liability claim made against Browne. Because the standard of review in this matter is de novo, we will review the matter accordingly.
The applicable Civil Code articles governing plaintiff's claims against Browne provide as follows:
Art. 2317. Acts of others and of things in custody
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.
Art. 2317.1. Damage caused by ruin, vice, or defect in things
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.
Art. 2322. Damage caused by ruin of building
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.
Regarding La. C.C. art. 2317.1, this Court has recognized that,
[a]rticle 2317.1, enacted in 1996, effectively eliminated the concept of 'strict liability' in cases involving defective things and imposed a negligence standard based on the owner or custodian's knowledge or constructive knowledge of the defect. See Lasyone v. Kansas City Southern R., 00-2628, p. 6 (La. 4/3/01), 786 So.2d 682, 689, at fn. 9. The concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant's garde. Hagood v. Brakefield, 35, 570 (La.App. 2 Cir. 1/23/02), 805 So.2d 1230, 1233.Lotridge v Abril, 07-0140, p. 5 (La.App. 4 Cir. 12/30/08), 3 So.3d 84, 88.
In Cipolla v. Cox Commc's Louisiana, LLC, 19-0509, p. 9 (La.App. 4 Cir. 8/5/20), 305 So.3d 911, 917, writ denied, 20-01123 (La. 11/10/20), 303 So.3d 1035, we further explained:
To prove premises liability under La. C.C. art. 2317.1, an injured plaintiff must first establish the following elements: (1) the thing was in the custodian's custody or control; (2) it had a vice or defect that presented an unreasonable risk of harm; (3) the defendant knew or should have known of the unreasonable risk of harm; and (4) the damage was caused by the defect. Szewczyk v. Party Planners West, Inc., 18-0898, p. 7 (La.App. 4 Cir. 5/29/19), 274 So.3d 57, 62.
Once these elements are established, the plaintiff must show: (1) the owner of a thing either knew or should have known of the ruin, vice, or defect which caused the damage; (2) the owner could have prevented the damage by the exercise of reasonable care; and (3) the owner failed to exercise such reasonable care. Id., pp. 7-8, 274 So.3d at 62. "To recover, the plaintiff bears the burden of proving these elements in the affirmative, and the failure of any one is fatal to the case." Id., p. 8, 274 So.3d at 62.
Similarly, under La. C.C. art. 2322, in order to hold a building owner liable for injuries stemming from the building's ruin, vice or defect, a plaintiff must prove: "(1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation." Broussard v. State, through Office of State Bldgs., Div. of Admin., 12-1238, p. 8 (La. 4/5/13), 113 So.3d 175, 182-83.
In the present case, it is undisputed that the exposed live electrical wire protruding from the junction box created an unreasonable risk of harm. It is also undisputed that plaintiff's contact with the wire caused his injuries. The question to be decided here is whether Browne knew or should have known that this condition existed and whether he could have prevented the incident.
"Constructive notice is defined as 'the existence of facts which infer actual knowledge.' Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury." Gardner v. Louisiana Superdome, 2013-1548, p. 7 (La.App. 4 Cir. 5/7/14), 144 So.3d 1105, 1109 (quoting Maldonado v. Louisiana Superdome Comm'n, 95-2490, pp. 6-7 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, 1092).
In connection with the motion for summary judgment, the trial court considered the deposition testimony of plaintiff, Browne, Riley, Nathan Africk ("Africk"), Earl Hardouin ("Hardouin"), Billy Keyes ("Keyes"), and Justin Whipple ("Whipple"). A summary of the deposition testimony follows.
Deposition testimony of plaintiff:
Plaintiff testified that at the time of the accident, he was working as a cement finisher for Keyes Constr. He stated that he was bending down, moving backward, as he finished the edge of the newly poured cement driveway, when his arm made contact with the exposed wire. He estimated that the wire was sticking out of the junction box about three to four inches and that the box did not have a cover on it. Plaintiff explained that he had been on the jobsite for three days when the accident occurred. He also stated that on the day of the accident, he passed the junction box fifteen to twenty times, but never noticed the wires. He stated that he never spoke with the owners of the property, and that they exercised no control over his work. Plaintiff indicated that he would not recognize Browne or Riley if he were shown their pictures.
Deposition testimony of Browne:
Browne testified that the work performed on the Webster Street home included the construction of a swimming pool, renovations to the kitchen, laundry room, back porch, new driveway, and the conversion of the garage at the end of the driveway into a pool house. He believed that electrical work was associated with most aspects of the project and with the pool construction, but was not aware of the specifics. He also believed that the electricity for the pool house was run under the new driveway. Browne confirmed that Whips Electric performed the electrical work on the interior and exterior of the home.
Browne explained that he and his wife lived in Houston during the renovations, but visited the home approximately five to twenty times during the first six months of 2018. They moved into the home in June 2018. Browne explained that he had no idea what the junction box in question was powering. He further stated that he was not informed of any problems with the wire or junction box by anyone working on the project. Browne denied doing any electrical work on the home himself. He did not know what the junction box looked like at the time of the accident and he had no idea who removed it afterward. Finally, Browne stated that the pre-sale inspection on the home did not identify any problems with the junction box.
Deposition testimony of Riley:
Riley corroborated her husband's deposition testimony, i.e., they were living in Houston during the renovations; they only visited the property a few times during the renovations; and she had no knowledge of the exposed electrical wire. She explained that she had no experience with home construction and would not have been able to identify a live electrical wire.
Deposition testimony of Africk:
Africk confirmed that his company, Africk Constr., was the general contractor on the renovation project. Africk Constr. renovated the kitchen, bathrooms, closet, added a driveway, rear porch, and turned the garage into a pool house. He stated that Whips Electric performed the electrical work, which included running electricity from the main house to the garage/new pool house. In the course of the renovation, Africk Constr. did not work on the pillar where the junction box was located. He believed, however, that the wires from the junction box were going to the garage. He also believed that the junction box was there before the work started. He was not aware that Browne had ever touched the wire. Africk was not at the jobsite when the accident happened, but arrived shortly thereafter to see the exposed wire. He called Whipple, who arrived shortly thereafter to remove the wire from the junction box. Africk explained that Browne and Riley were not around for a large part of the project, and they were not there on the day of the accident.
Deposition testimony of Hardouin:
Hardouin, the president of Paradise Pools, testified that he never saw the junction box and exposed wire and, consequently, never mentioned it to Browne or Riley. He never saw Browne or Riley doing any electrical work on the property and never saw them supervising any of the renovations. Finally, he stated that he had no idea who might have worked on the junction box.
Deposition testimony of Keyes:
Keyes, the owner of Keyes Constr., testified that he employed plaintiff to work on the new cement driveway. He stated that he never met Browne or Riley before the job started, and that they did not supervise his work. He further stated that they were not at the home on the day of the accident.
Deposition testimony of Whipple:
Whipple, the owner of Whips Electric, testified that he was personally on the job site 98 % of the time. His work on the project included installing an electrical panel for the new pool and running electrical from the main house to the pool and pool house. He confirmed that his company worked on some overhead lights in the patio area where the junction box was located. Whipple was called to the property to take care of the live wire after the accident. Before that time, he claimed he never worked on the junction box and never spoke to anyone about it. More specifically, he stated that he did not know the box existed and did not know what the wire in question was powering. Although it contradicts all other witnesses, Whipple testified that Browne and Riley were at the home "every day" supervising his work. We note that in making this statement, Whipple did not clarify whether he was referring to the period of time leading up to the accident or in his work for Browne and Riley after they moved into the home on June 1, 2018. This question remains unanswered. Moreover, Whipple's testimony raises credibility concerns.
As the Louisiana Supreme Court explained in Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 8 (La. 2/20/04), 866 So.2d 228, 234 (citations omitted),
A trial judge cannot make credibility determinations on a motion for summary judgment. A party seeking a summary judgment is entitled to a favorable judgment only if "there is no genuine issue as to a material fact" and, thus, the "mover is entitled to judgment as a matter of law." (Emphasis added.) LSA-C.C.P. art. 966(B). The credibility of a witness is a question of fact.
Based on our de novo review of the record, we find that material questions of fact remain as to Browne's personal involvement in the renovation project, as well as his constructive knowledge of the defect at issue. Accordingly, we find no error on the part of the trial court in denying Browne's motion for summary judgment.
DECREE
For the foregoing reasons, Browne's writ application is denied.
WRIT DENIED
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