Opinion
NUMBER 2012 CA 1979
2013-09-20
CONNIE McINTYRE v. KEITH ADAMS
William R. Mustian, III Metairie, LA Attorney for Appellant Plaintiff - Connie McIntyre John E. McAuliffe, Jr. Metairie, LA Attorney for Appellees Defendants - Keith Adams and State Farm Fire and Casualty Co.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
32nd Judicial District Court
In and for the Parish of Terrebonne, Louisiana
Trial Court Number 160,898
Honorable Randall L. Bethancourt, Judge
William R. Mustian, III
Metairie, LA
Attorney for Appellant
Plaintiff - Connie McIntyre
John E. McAuliffe, Jr.
Metairie, LA
Attorney for Appellees
Defendants - Keith Adams and
State Farm Fire and Casualty Co.
BEFORE: PARRO, GUIDRY, McCLENDON, WELCH, AND DRAKE, JJ.
WELCH, J.
Plaintiff, Connie McIntyre, appeals a summary judgment entered in favor of defendants, Keith Adams and State Farm Fire and Casualty Company, dismissing her personal injury lawsuit. We reverse and remand.
BACKGROUND
On June 4, 2010, Ms. McIntyre filed this lawsuit seeking damages against Mr. Adams, alleging that she was injured while performing swimming pool service work at Mr. Adams' home. Specifically, she alleged that while she was pulling on a pool liner, the liner slipped, causing her to fall to the ground. She claimed that as she fell, her hand was punctured by a screw pointing in an upwards position on a board lying on the ground. Ms. McIntyre alleged that the incident was caused by the negligence of Mr. Adams in the following respects: (1) leaving the board with a protruding screw on the ground in an area that he knew or should have known would be travelled by invitees to the property; (2) failing to remove the screw from the board or remove the board from the area given its dangerous propensities; (3) failing to warn her of the unreasonably dangerous condition presented by the presence of the board with a protruding screw. Ms. McIntyre later added State Farm, Mr. Adams' homeowners' insurer, as a defendant in the litigation.
The defendants filed a motion for summary judgment, asserting that it was undisputed that neither Mr. Adams, his wife, Karen, nor their son, Matthew, caused the board with the screw to be on the ground prior to the time of Ms. McIntyre's fall. They also claimed that Ms. McIntyre could not establish the knowledge element of her tort claim. Defendants attached excerpts of the depositions of Ms. McIntyre, Zeki Yildiz, Mr. and Mrs. Adams, and Matthew Adams in support of the motion.
Ms. McIntyre testified that she was employed by Dinger's Pool and Spas as an above-ground pool installer. On July 29, 2009, she and Mr. Yildiz went to the Adams' home to install a new liner and a new wall on the Adams' above-ground pool. She testified and photographs reflect that the pool is completely surrounded by a wooden deck. Ms. McIntyre testified that after arriving at the Adams' residence at approximately 8 a.m. or 9 a.m, she and Mr. Yildiz entered the back yard through a side gate, and Mr. Yildiz proceeded to drain the pool. She claimed that the job they were to perform that day did not require them to remove any wood from the deck. Ms. McIntyre testified that she observed that there was some wood missing from the deck when they arrived that morning and that Mr. Yildiz commented that wood was missing from the deck. However, she insisted that neither she nor Mr. Yildiz removed any wood from the deck before the accident and that she did not see where the missing wood was located.
According to Ms. McIntyre, it took about two hours to drain the pool, and during this time, she basically waited in the backyard for that to occur. She stated that she went back and forth to the truck a few times and also moved to another spot in the yard to avoid the sun. She also recalled that Mrs. Adams brought water out to the patio for the workers to drink, but could not remember if it was before or after the accident, although she acknowledged that she walked to the patio to get some water. After enough water had been removed from the pool, Ms. McIntyre got on the deck and began to pull on the pool's liner to remove it. The liner was slimy and slippery, and suddenly, Ms. McIntyre fell backwards and put her right arm out to break her fall. As Ms. McIntyre fell, her right hand came into contact with a screw protruding from a board lying on the ground. Ms. McIntyre testified that she had no idea how long the board had been there, had no idea how it got there, and denied having seen this board while sitting in the backyard or while walking to and from her truck or to and from the patio that morning. When asked why she did not see the board prior to her fall, Ms. McIntyre did not offer any explanation, simply stating, "I don't know."
In connection with her testimony, Ms. McIntyre drew a diagram indicating where she was standing on the deck at the time of her fall and the location of the board on the grassy area between the patio and the deck. The defendants submitted this diagram in support of their motion for summary judgment.
Mr. Yildiz testified that after arriving at the Adams' residence, he inspected the pool area. He stated that in order to remove the liner, the "cap" or connections had to be removed. During his inspection, he observed that the connections were all loose and that the screws had been removed from them. Mr. Yildiz testified that for him to remove the cap and have clearance to the pool, the board is in the way, so the pool store typically tells customers to remove the board because that is not the installer's responsibility. However, Mr. Yildiz testified that the boards were all in place where they were supposed to be on the deck at the connection points. He testified that prior to Ms. McIntyre's accident neither he nor Ms. McIntyre removed any boards from the deck.
In her deposition, Mrs. Adams testified that she was at home when the pool work was being performed and that Mr. Yildiz reported the incident to her. She asked Ms. McIntyre what happened, and Ms. McIntyre showed her a board on the ground. Mrs. Adams acknowledged that the board was within inches of the deck and that she saw the exposed screw. Mrs. Adams, who is a registered nurse, observed a wound on Ms. McIntyre's hand and put a Band-Aid and some antibiotic ointment on the wound.
Mr. Adams testified that he was not at home when the incident occurred; however, he first met Ms. McIntyre later that afternoon. Mr. Adams had the pool installed in 2004 and originally installed the deck himself, using screws. He completed the installation of the deck the following year. Mr. Adams stated that the pool's liner had been damaged by Hurricane Gustav, which necessitated its replacement on the day in question; however, he denied that the deck had been damaged in the storm. Mr. Adams testified that on the day Ms. McIntyre worked at his home, no parts of the deck were missing and no boards had been removed from the deck.
Mr. Adams testified that after Ms. McIntyre's accident, his wife pointed out the board in question to him, and that was the first time he saw the board, which was lying against his shed on the ground. Mr. Adams acknowledged that the board apparently came from his deck, but he did not know who removed it from his deck. Mr. Adams picked the board up, flipped it over so that the screw would not be sticking out, and put it back on the deck after the pool work had been completed. Mr. Adams stated that he cut his grass two to three times a week, and if the board had been on the ground, he would have seen it.
Mr. Adams further testified that the board in question was the only board he saw lying on the ground. He also stated that after the accident, there were several boards missing around the skimmer box he identified in photographs and that he found those boards all strewn out on the deck. Mr. Adams insisted that Mr. Yildiz must have removed the boards, adding that before the accident, there were no boards missing from the deck, and that in order to get the liner out of the pool, the workers would have to have gone underneath the boards to take out the screws in order to remove the top cap. The defendants also offered two photographs of the pool and deck and a portion of the back yard in conjunction with Mr. Adams' testimony.
Matthew Adams testified that he was living at home at the time of the incident. He stated that he used the pool approximately two to three times a week and that he cut grass in the area. Matthew testified that he had been in the back-yard about a week before the incident and that he did not see any loose boards or pieces of wood on the ground. He further stated that on the day in question, he did not return home until after the incident occurred, and he did not see any boards that had been removed from the deck. He denied having anything to do with moving a board prior to the accident.
The defendants argued that the only conclusion that could be drawn from this evidence is that either Ms. McIntyre or Mr. Yildiz caused the board to be in the grassy area adjacent to the pool deck prior to Ms. McIntyre's encounter with it. They further asserted that neither Mr. Adams nor his wife had knowledge of the existence of the board in this area prior to Ms. McIntyre's fall because the evidence showed that at the time of the incident, neither of them was working in the backyard, and prior to the fall, Mr. Adams was not even home.
In opposition to the motion for summary judgment, Ms. McIntyre argued that summary judgment was inappropriate in this case because it ultimately boiled down to a "swearing match," as she, Mr. Yildiz, and Mr. Adams all denied having placed the board on the ground prior to her accident. She urged that a reasonable inference could be made that either she, Mr. Adams, or Mr. Yildiz were responsible for placing the board on the ground since there was no evidence that anyone else would have been in a position to do so. Ms. McIntyre insisted that a trial was necessary to determine who was telling the truth and which witnesses were more credible. She also argued that with reference to the issue of actual or constructive notice of the board being on the ground, because Mr. Adams admitted to mowing the grass in the backyard at least a couple of times a week, he would have been in a position to see it. In opposition to the motion for summary judgment, Ms. McIntyre submitted excerpts of her deposition and Mr. Yildiz's deposition in which they denied having removed any boards from the deck on the day in question. She also submitted a portion of Mr. Adams' deposition, in which he stated that he installed the deck, and an excerpt of Matthew's deposition, in which he acknowledged that he saw his father putting boards back on the deck after the incident, although he could not recall the specific date. Lastly, Ms. McIntyre offered Mrs. Adam's deposition testimony that her husband cut the grass in July 2009 at least once or twice a week.
In response, the defendants again insisted that the only logical conclusion that could be drawn from the testimony is that Mr. Adams had nothing to do with placing the board on the ground and that either Mr. Yildiz or Ms. McIntyre placed the board on the ground. They contended that the evidence showed that there was no board in the grassy area where Ms. McIntyre fell prior to her arrival at their residence, as Mr. Adams and his son testified they cut the grass every week or so and there was not a board in that area. They also stressed that Ms. McIntyre and Mr. Yildiz stated that they did not see any boards on the ground before Ms. McIntyre's fall. According to the defendants, the evidence establishes that Mr. Adams did not place the board on the ground because it was not even on the ground before Ms. McIntyre arrived at his home, and further, he could not have placed the board on the ground after Ms. McIntyre's arrival because he was not present prior to her fall. In support, the defendants submitted portions of the same depositions relied on in support of their motion for summary judgment.
Following a hearing, the trial court granted the defendants' motion for summary judgment and dismissed this lawsuit. From this judgment, Ms. McIntyre appealed.
DISCUSSION
Appellate courts review summary judgments de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Smith v. The Runnels Schools, Inc., 2004-1329 (La. App. 1st Cir. 3/24/05), 907 So.2d 109, 112. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Janney v. Pearce, 2009-2103 (La. App. 1st Cir. 5/7/10), 40 So.3d 285, 289, writ denied, 2010-1356 (La. 9/24/10), 45 So.3d 1078. A trial court may not make credibility decisions on a motion for summary judgment and must assume that all of the witnesses are credible. Id. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubts must be resolved in the opponent's favor. Id.
As a general rule, the owner of immovable property has a duty to keep the property in a reasonably safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. Smith, 907 So.2d at 112. The duty is the same under theories of negligence or strict liability. Under either theory, the plaintiff has the burden of proving that: (1) the property which caused the damage was in the "custody" of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Id.
In the instant case, Ms. McIntyre contends that the board in question presented an unreasonable risk of danger to her because it was lying on the ground with an exposed screw. The defendants did not move for summary judgment on the issue of whether the board presented an unreasonable risk of danger to Ms. McIntyre. Instead, they urged that Ms. McIntyre cannot establish that Mr. Adams knew or should have known of the presence of the board on the ground before Ms. McIntyre's fall. The defendants claim that Ms. McIntyre cannot prove that Mr. Adams had actual knowledge that the board was lying on the ground because the evidence shows that he did not place the board there before Ms. McIntyre's arrival and either Ms. McIntyre or Mr. Yildiz was responsible for the board being on the ground. They further posit that Ms. McIntyre cannot prove constructive knowledge of the presence of the board because Mr. Adams was not even home when the board was removed from the deck and found its way on the ground.
To accept the defendant's version of the events and thus find that Ms. McIntyre cannot establish the knowledge element of her claim, a credibility determination must be made. Ms. McIntyre, Mr. Yildiz, and Mr. Adams all denied having placed the board on the ground prior to Ms. McIntyre's encounter with it. If the trier of fact believes Ms. McIntyre and Mr. Yildiz's claim that neither of them removed the board from the deck prior to the fall, it could reasonably infer that Mr. Adams or someone for whom Mr. Adams is responsible left the board with an exposed screw on the ground. At that point, the trier of fact would be required to decide whether the board was unreasonably dangerous under all of the circumstances of this case. The trier of fact would then have to determine whether the presence of the board on the ground with an exposed screw was an open and obvious danger which should have been observed by Ms. McIntyre.
On the other hand, if the factfinder believes Mr. Adams' testimony that: (1) no boards were removed from the deck prior to the accident; (2) the board in question apparently came from the deck; (3) he did not leave the subject board on the ground prior to the accident; and (4) he was not at home at the time of the accident, it could infer that either Ms. McIntyre or Mr. Yildiz caused the board to be left on the ground while they were working. Under that scenario, a factfinder could find that Mr. Adams did not have actual or constructive knowledge of the risk of harm.
Any doubt as to a dispute regarding a material issue of fact must be resolved against granting a motion for summary judgment and in favor of a trial on the merits. Janney, 40 So.3d at 293. In this case, the issue of who was responsible for placing the board on the ground prior to the accident is disputed. The knowledge issue, which served as the basis for the motion for summary judgment, cannot be determined until this disputed issue of material fact is resolved. The trial court's granting of summary judgment required it to decide disputed issues of material fact and to make credibility determinations. In so doing, the trial court erred, as these matters are reserved to the trier of fact. See Janney, 40 So.3d at 293.
CONCLUSION
For the foregoing reasons, the judgment appealed from is reversed. This case is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to appellees, Keith Adams and State Farm Fire and Casualty Company.
REVERSED AND REMANDED. CONNIE MCINTYRE
VERSUS
KEITH ADAMS
NUMBER 2012 CA 1979
DRAKE, J., dissenting.
I disagree with the majority that there is a disputed issue of material fact which relies upon a credibility determination. On a motion for summary judgment, the burden of proof is on the mover. If the moving party will not bear the burden of proof at trial on the matter, that party's burden on a motion for summary judgment is to point out an absence of factual support for one or more essential elements of the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966 C(2); McNeil v. Miller, 2008-1973 (La. App. 1 Cir. 3/27/09), 10 So. 3d 327, 329.
Summary judgment is appropriately granted when plaintiff fails to meet his burden of producing factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial and does not thereby establish a genuine issue of material fact. Id. at 330. This court has held that a defendant's evidence which supports the assertion that the plaintiff will be unable to show that the defendant knew or should have known that a defect existed or that the plaintiff will be unable to present any evidence establishing that the defendant knew or should have known of the defect is sufficient to support summary judgment. Id. at 330-331.
Plaintiff in the present case bore the burden of proving the negligence of Mr. Adams. We are responsible for the damage occasioned by things which we have in our custody. La. C.C. art. 2317. However, the owner or custodian of a thing is only answerable for the damage caused by its ruin, vice, or defect 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. La. C.C. art. 2317.1.
When a plaintiff fails to have evidence to prove an essential element of his claim, for instance, that Mr. Adams had notice of or knew or should have known of an unreasonably dangerous condition on the premises prior to an accident, summary judgment is appropriate. Christakis v. Clipper Const., L.L.C., 2012-1638 (La. App. 1 Cir. 4/26/13), 117 So. 3d 168.
In the present case, once Mr. Adams presented evidence that he did not know the board with the screw upon which Ms. McIntyre fell was in his yard, Ms. McIntyre had the burden to prove a material issue of fact. Ms. McIntyre testified she did not see the board while working on the pool liner, that neither she nor Mr. Yildiz removed any boards, and that she does not know from where the board came. Mr. Adams presented deposition testimony that he had no knowledge that the board was in his yard prior to the accident, that there were no boards missing from his deck prior to Ms. McIntyre and Mr. Yildiz coming to work on the pool, and that neither he nor anyone in his family was aware how the board came to be in his yard. All parties involved deny placing the board on the ground. Ms. McIntyre presented no evidence to show that she would be able to carry her burden of proving actual or constructive knowledge by Mr. Adams at trial. Therefore, there is no genuine issue of material fact and the trial court correctly granted summary judgment. I do not believe Ms. McIntyre has supported her claim that a credibility issue is involved, as she has been unable to produce any evidence at all as to how the board came to be on the ground. I believe there may be a credibility issue if Ms. McIntyre testified that she saw Mr. Adams put the board on the ground, or that she saw the board on the ground when she arrived in the yard, and Mr. Adams testified that he did not, but that is not the case in this matter. I would affirm the trial court's granting of defendant's summary judgment dismissing plaintiff's claims.
Thus, I respectfully dissent.