Opinion
Civil Action No. 99-3436 Section "L" (1).
September 22, 2000.
ORDER AND REASONS
Before the Court is Defendant Oakwood Village Investment Co.'s ("Oakwood") motion for summary judgment and Defendant Cox Communication New Orleans, Inc.'s ("Cox") motion for summary judgment. These motions were taken under submission by the Court on the briefs. After a review of the applicable law, the record, and the memoranda in support and opposition, Defendant Oakwood's motion for summary judgment is DENIED and Defendant Cox's motion for summary judgment is DENIED.
I. BACKGROUND
Plaintiff Cheryl O'Neal alleges that on October 11, 1997, she tripped while walking down the stairs of the apartment she rented from Defendant Oakwood. Plaintiff alleges that she tripped over a cable television wire owned by Defendant Cox that ran across the steps. Plaintiff claims she received serious injuries in the fall.
It is undisputed that the cable wiring was in the apartment prior to plaintiff signing the lease and taking occupancy. Plaintiff alleges that employees of Defendant Oakwood entered the apartment to make repairs between September 25 and September 30, 1997, and on October 1 and October 3, 1997. Plaintiff also provides maintenance records that indicate employees of Defendant Cox made three service calls to the apartment in 1997, including calls approximately five weeks before and six days after plaintiffs accident.
Plaintiff filed suit in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, alleging negligence against Oakwood and Cox and seeking damages in an amount to be determined by the evidence plus all costs from the proceedings and any other general and equitable relief. On November 12, 1999, Oakwood removed the case to this Court on the basis of diversity jurisdiction.
Defendants move for summary judgment on the grounds that there are no material disputes of fact and that each defendant is entitled to judgment as a matter of law. Specifically, defendants contend that the undisputed facts of this case establish that no defect existed in plaintiffs premises, they were not negligent, and that plaintiffs fall was caused solely by plaintiffs own acts and omissions.
Plaintiff opposes both motions.
II. SUMMARY JUDGMENT STANDARD
Summary judgment will be granted only when there are no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. When evidence of contradictory facts has been submitted, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, the nonmovant cannot rest on mere allegations or denials but must set forth specific facts showing that there is a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986).
The Court does not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "[A] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the moving party." Willis, 61 F.3d at 315. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita, 475 U.S. at 588. Finally, "the mere existence of some factual dispute will not defeat a motion for summary judgment; Rule 56 requires that the fact dispute be genuine and material." Willis, 61 F.3d at 315. "Only disputes over facts that might affect the outcome of the suit under the governing law will preclude summary judgment." Id.
III. ANALYSIS
Generally, to establish a defendant's negligence Louisiana law requires a plaintiff to show that 1) the defendant was the cause-in-fact of the resulting harm; 2) the defendant owed a duty of care to the plaintiff; 3) defendant breached that duty; and 4) the risk of harm caused was within the scope of protection afforded by the duty breached. See Peterson v. Gibraltar Savings Loan, 733 So.2d 1198, 1203-04 (La. 1999).
Whether in an action for negligence under La. Civ. Code Ann. art. 2315 or an action for liability pursuant to La. Civ. Code Ann. art. 2317.1, the plaintiff must show that (i) a defective condition existed on the premises which caused the injury, (ii) the owner knew or should have know of the existence of the defect, and (iii) the owner failed to take adequate steps to remedy the defect. See La. Civ. Code Ann. art. 2317.1, Naylor v. Louisiana Dept. of Public Highways, 423 So.2d 439 (La.App. 2 Cir. 1982).
Defendant Oakwood argues that under La. Rev. Stat. Ann. § 9:3221 the indemnity clause in plaintiffs lease whereby plaintiff agrees to indemnify Oakwood for any legal action arising out of the lease agreement bars plaintiffs claim against Oakwood.
Section 9:3221 provides:
The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.
Defendant Oakwood alleges that it did not have knowledge of the alleged defect either by complaint or observation so it cannot be liable under either La. Civ. Code Ann. art. 2315, or La. Civ. Code Ann. art. 2317.1 and, therefore, under Section 9:3221, the lease's indemnity clause controls.
Plaintiff argues that defendants' contention that they did not have either actual or constructive knowledge is not credible. Plaintiff provided photographs showing the cable wires, arguably in plain view, wrapping around the banister and across the stairs of plaintiffs apartment. Plaintiff alleges that Oakwood knew or should have known about the cable wires because Oakwood's building manager and/or maintenance employees entered the apartment to make repairs between September 25 and September 30, 1997, and on October 1 and October 3, 1997. Plaintiff points to statements from Oakwood's building manager that indicate she did see the wire on the floor of the apartment "but felt it was the obligation of the tenant or Cox Cable to correct" its placement.
Plaintiff provides records that show a Cox technician serviced the cable converter box, splicers and wires in plaintiffs apartment three times in 1997, including approximately five weeks before and six days after plaintiffs accident. While this evidence is not conclusive, it does establish a question of fact that is not appropriate for summary judgment.
Defendants cite Barnes v. New Hampshire Insurance Co. for the proposition that a premises owner is not liable for an injury that results from a condition that should have been observed by the individual in the exercise of reasonable care or which was as obvious to the visitor as it was to the owner. See Barnes, 573 So.2d 628, 630 (La.App. 2 Cir. 1991). Defendants allege that they are not liable because the cable wires were obvious, should have been observed by plaintiff, and that she fell because she was intoxicated and sleep deprived, hot because of a defect in the apartment. This issue raises the question of plaintiffs contributory negligence.
The Court agrees with the plaintiff that the issue of her contributory negligence cannot be decided summarily on the facts shown. These questions should be addressed at trial.
Defendant Cox further argues that it is entitled to summary judgment because plaintiff cannot identify the persons or entity that brought the cable wires into her apartment. In her opposition memorandum, plaintiff provides records that indicate a Cox technician serviced the cable converter box, splicers and wires in plaintiffs apartment three times in 1997, including approximately five weeks before and six days after plaintiffs accident. Plaintiff also provides photographs of the wires and splicers that show Cox's name printed on them. While this evidence is not conclusive of Cox's ownership, it is sufficient to create an issue of material fact that is not appropriate for summary judgment.
Taking the facts in the light most favorable to the nonmovant, this Court finds that there are questions of material fact as to whether Oakwood or Cox had actual or constructive knowledge of a dangerous condition in plaintiffs apartment, or if their actions contributed to plaintiffs injuries. Therefore, Motion of Defendant Oakwood for Summary Judgment is DENTED and Motion of Defendant Cox for Summary Judgment is DENTED.