EDWIN A. LOMBARD, Judge.
The Appellant, Plaintiff Reuben Williams, seeks review of the August 13, 2013 judgment of the district court in favor of Appellees, Defendants Hyman-Moses Properties, L.L.C. and Kornfeld Properties, L.L.C., which denied in part his Motion for New Trial. Pursuant to our de novo review, we reverse the judgment of the district court in favor of Hyman-Moses Properties, L.L.C. and Kornfeld Properties, L.L.C., and remand for further proceedings.
Reuben Williams ("Mr. Williams") was employed as a parking lot attendant by Premium Parking, L.L.C. ("Premium") and worked at a parking garage located at 911 Iberville Street ("the Garage") in New Orleans. Premium began leasing the Garage from building owners, Hyman-Moses
Mr. Williams subsequently filed suit against: The Three Girls, L.L.C.,
In February 2012, the Owners filed a Motion for Partial Summary Judgment asserting that they were not liable for Mr. Williams' injuries because they had transferred responsibility and liability for any injuries or damages due to any defects in the Garage to Premium in the Lease. The hearing on the motion was held on April 13, 2012, but the district court withheld ruling on the motion to allow Mr. Williams time to conduct further discovery.
Thereafter, the Owners re-urged their Motion for Partial Summary Judgment, which the district court granted on January 2, 2013. Mr. Williams timely filed a Motion for New Trial arguing that the district court erred in granting the Motion for Partial Summary Judgment and further asserting, in the alternative, that the district court should amend the January 2, 2013 judgment to apply La.Code Civ. Proc. art. 966(F).
The Appellant raises three (3) issues on appeal:
In his first two assignments of error, Mr. Williams contests the district court's grant of summary judgment in favor of the Owners under La. Civ.Code arts. 2696 and 2697 as well as under La.Rev.Stat. 9:3221.
Regarding La. Civ.Code arts. 2696 and 2697, he argues that the Lease executed between the Owners and Premium is irrelevant because under the aforementioned articles, the Owners warranted that the condition of the property was free of defects. The articles state:
Mr. Williams alleges that the holes and openings in the manlift cover are structural in nature and the Owners could have remedied its condition had they performed a cursory inspection to view the defects and repaired the manlift cover. Premium, he argues, did not cause the holes and openings that led to the water intrusion, according to the testimony of Premium representative Sterling Chauvin. However, Mr. Williams argues that Ted Moses, who is the minority owner of Hyman-Moses, L.L.C. and co-manager of the Garage, testified that he was on the roof of the Garage "numerous times" over a 15-20 year period. Thus, Mr. Williams contends that Mr. Moses should have discovered the defective condition of the manlift cover.
Furthermore, relying upon the affidavit of his engineering expert, Leonard C. Quick, P.E., Mr. Williams argues that the defects at issue pre-dated the Lease and the Owners ignored these defects. He avers that the allegedly rusty and hole-filled condition of the manlift cover created a defective and dangerous condition, which the Owners warranted that they would prevent. Mr. Quick's attestation to the poor condition of the manlift cover is unrebutted by the Owners. Thus, he avers that it is uncontroverted that the long-standing
He further avers that prior to the delivery of the premises to Premium, the Owners warranted that the manlift cover was free from defects and vices. Moreover, the warranty extends to those vices and defects unknown to the lessor. La. Civ. Code art. 2697. Considering that the manlift cover was riddled with holes and openings that existed prior to the execution of the Lease, Mr. Williams maintains that the Owners violated the warranty against vices or defects because the leased premises were not free of vices and defects prior to delivery of the premises.
Moreover, even if the Lease is relevant, Mr. Williams argues that it placed the obligation to effectuate structural repairs on the Owners:
Appellate courts review motions for summary judgment de novo on appeal "using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Supreme Services & Specialty Co., Inc., v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. Pursuant to La.Code Civ. Proc. art. 966(B)(2), a summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir.11/13/96), 684 So.2d 488, 490.
Where the party seeking summary judgment will not bear the burden of proof upon a particular element of a claim or cause of action, that party need not disprove that element in order to obtain summary judgment. Simon v. Hillensbeck, 12-0087, p. 6 (La.App. 4 Cir. 09/19/12), 100 So.3d 946, 949 [citations omitted]. Instead, the movant's entitlement to summary judgment is established on its pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Id.
The initial burden of proof remains with the mover to show that no genuine issue of material fact exists; however, if the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. Jones v. Estate of Santiago, 03-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006. Nevertheless, the plaintiff opposing the motion "may not rely upon the allegations made in his pleadings, simple speculation as to facts or evidence, or `posit the hypothetical existence of a
Upon our review of the Lease of the Garage, we note that it contains a clause limiting the responsibility of the Owners to only those damages the Owners failed to commence repairing after being notified by Premium of the damage. The Lease states in relevant part:
We recognize that the warranty against vices and defects contained in articles 2696 and 2697, may be waived. Tassin v. Slidell Mini-Storage, Inc., 396 So.2d 1261 (La.1981). The warranty provided in La. Civ.Code art. 2696 may be waived by clear and unambiguous language that is brought to the attention of the lessee, under La. Civ.Code art. 2699. Graubarth v. French Mkt. Corp., 07-0416, p. 9 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 666. Article 2699 of the Louisiana Civil Code states in pertinent part:
This article, however, should be read in conjunction with La.Rev.Stat. 9:3221, which provides an exception to the application of La. Civ.Code art. 2699:
In the matter sub judice, the waiver of the warranty against vices or defects was included in Section 10 of the Lease, quoted above. The Lessors absolved themselves of responsibility for vices or defects, even latent ones, in lucid terms for the subject property. Moreover, the clause further states that the Owners are not liable for injuries to the Lessee or to third parties on the premises. We find this to be a clear and unambiguous waiver of the warranty
Nevertheless, La.Rev.Stat. 9:3221 provides that a waiver of the warranty for defects is not applicable under two (2) circumstances: 1) when the owner knew or should have known of the defect or 2) when the owner had received notice of the defect and failed to remedy it within a reasonable time. Mr. Williams argues that the former circumstance applies in the instant matter.
He contends that the district court committed a legal error in granting the Owners' summary judgment under La. Rev.Stat. 9:3221 because the evidence shows that the alleged defect in the premises existed prior to the execution of the Lease between Premium and the Owners, who knew or should have known of the defective condition of the manlift cover for the following reasons:
Mr. Williams argues that in consideration of Mr. Moses' dual role as the manager of the property and a minority owner, Mr. Moses' actions or omissions are imputed to his employers, the Owners under La. Civ.Code art. 2320.
Lastly, he maintains that summary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge and malice. Williams v. Asbestos Defendants, 11-0716, p. 5 (La.App. 4 Cir. 5/16/12), 95 So.3d 497, 501. He further relies upon the First Circuit's holding that issues requiring the determination of reasonableness of acts and conduct of the parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment. Granda v. State Farm Mut. Ins. Co., 04-1722 (La.App. 1 Cir. 2/10/06), 935 So.2d 703.
If we were to impute Mr. Moses' knowledge of the premises to the Owners as a whole, we might conclude that the Owners did not know of the alleged defective condition of the manlift cover. However, it is more unclear whether the Owners should have known of the alleged defective condition of the manlift cover.
The affidavit of Mr. Quick indicates that the condition of the shed had deteriorated over a period of years. Indeed, paragraphs 11 and 12 of Mr. Quick's affidavit state:
The length of time between the October 2009 execution of the Lease and Mr. Williams August 2010 accident was less than a year. Consequently, if the condition of the manlift cover had been deteriorating over years, based upon Mr. Quick's
Consequently, we pretermit further discussion of Mr. Williams' remaining assignment of error as well as those assignments raised by Appellees, Humphrey Manlift and R & R, in their respective answers to the appeal, as they are now moot.
For the foregoing reasons, the August 19, 2013 judgment of the district court is reversed and this matter is remanded for further proceedings.
TOBIAS, and LANDRIEU, JJ., concurs.
TOBIAS, J., concurs.
I respectfully concur. Genuine issues of material fact demonstrated by the record on appeal presently preclude the granting of the motion for summary judgment.
LANDRIEU, J., concurs.
I respectfully concur for the reasons assigned by Judge Tobias.
Additionally, the district court designated this judgment as final under La.Code Civ. Proc. art. 1915(B)(1).