KEATY, Judge.
Plaintiffs/Appellants, Russell Maricle and Mary Francis Maricle, appeal the trial court's judgment granting a cross motion for summary judgment in favor of Defendant/Appellee, Axis Medical & Fitness Equipment, LLC. For the following reasons, the trial court's judgment is reversed.
This products liability matter arose after Mr. Maricle sustained injuries from a defective wheelchair that he was using during his recovery for injuries sustained in an automobile collision. The wheelchair was provided by Axis who delivered it to him on January 8, 2013. On April 27, 2013, Mrs. Maricle was pushing him in his wheelchair up a ramp when the back of his wheelchair ripped, causing Mr. Maricle to fall backwards, hit his head on the pavement, and reinjure his neck.
As a result, Plaintiffs filed suit on June 26, 2013, which was amended and supplemented, against Axis, Dalton Medical Corporation, and Dalton Instrument Corporation (hereinafter the two Dalton entities will be referred to as "Dalton"), alleging that the wheelchair was defective in design and/or manufacture by Dalton and that Axis "knew or should have known of the defects in the [w]heelchair, because it should have inspected the [w]heelchair before delivery[.]" Plaintiffs also alleged that Axis was "in the business of renting medical equipment." On May 9, 2014, Plaintiffs filed their second supplemental and amending petition for damages and asserted a redhibitory claim against Axis and Dalton. On that same day, Axis filed a cross claim against Dalton, seeking tort indemnification for redhibitory and/or manufacturing defects. Also on that same day, Axis filed a motion for summary judgment seeking dismissal of Plaintiffs' claims, alleging that it was not negligent under La.Civ.Code art. 2317.1, which governs a custodian's liability for damages caused by defective things. In opposition, Plaintiffs argued that Axis was strictly liable as a lessor pursuant to La.Civ.Code arts. 2696-97, which govern a lessor's warranties against vices or defects. The foregoing pleadings were timely filed in accordance with the trial court's May 9, 2014 deadline for amendment of pleadings.
After the deadline passed, Plaintiffs and Dalton participated in a mediation, which resulted in them settling their products liability claim against Dalton while reserving their rights against Axis. Axis did not participate in the mediation, and on June 5, 2014, it filed a supplemental cross claim against Dalton, asserting a products liability claim and alleging comparative fault. Plaintiffs and Dalton each filed motions to strike Axis's supplemental cross claim as untimely in light of the May 9, 2014 deadline. Dalton also filed an exception of prescription and argued that Axis's redhibition claims asserted in its original cross claim had prescribed.
After the June 30, 2014 hearing on the pending motions, the trial court orally denied Axis's motion for summary judgment, holding that Plaintiffs' pleadings contained "sufficient allegations" that made it "clear that the wheelchair was leased to Mr. Maricle[]" and that "Axis has understood from the beginning that that's the basis of the claim here." This was reduced to writing in the trial court's September 16, 2014 judgment. Approximately one month prior, on August 13, 2014, the trial court
Axis appealed the August 13, 2014 judgment prior to the scheduled trial on the merits. Axis also filed a motion to stay the judgment pending an appeal on September 2, 2014, which Plaintiffs opposed. Following a hearing on September 8, 2014, the trial court denied Axis's motion to stay the judgment pending an appeal and bifurcated the trial between liability and damages, with the trial on the damages to begin on September 10, 2014. This was memorialized in the trial court's written Order signed on September 10, 2014. According to the December 31, 2014 written reasons for judgment and its January 27, 2015 written judgment on damages, the trial court fixed Plaintiffs' general damages at $150,000 plus medical special damages.
In the meantime, Axis's pending appeal was heard by another panel of this court, and on May 6, 2015, it affirmed the trial court's August 13, 2014 judgment. Maricle v. Axis Med. & Fitness Equip., LLC, 14-1249 (La.App. 3 Cir. 5/6/15), 2015 WL 2125950 (unpublished opinion). This court held that "[t]he only remaining issue concerns the Maricles' claims against Axis for its alleged negligent failure to inspect." Id. at 4.
Plaintiffs subsequently filed a motion for summary judgment on May 20, 2015, alleging that Axis was strictly liable as a lessor under La.Civ.Code arts. 2696-97. Axis filed a cross motion for summary judgment on June 11, 2015, arguing that the only allegations against Axis arose from its alleged negligent failure to inspect the wheelchair prior to delivery. Axis asserted that it was not liable since there were no visible defects in the wheelchair prior to or at the time of its delivery to Mr. Maricle. After the July 13, 2015 hearing on the pending motions, the trial court granted Axis's cross motion for summary judgment and dismissed Plaintiffs' claims with prejudice, which was reduced to writing in the August 26, 2015 judgment. In its written reasons for judgment rendered on July 23, 2015, the trial court referenced our previous holding in Maricle, 14-1249, and stated that the only remaining issue was whether Axis negligently inspected the wheelchair. Plaintiffs appealed the trial court's granting of Axis's cross motion for summary judgment.
On appeal, Plaintiffs assert the following four assignments of error:
In Whitbeck v. Champagne, 14-245, p. 9 (La.App. 3 Cir. 10/1/14), 149 So.3d 372, 379, this court stated the following:
We will, therefore, use the de novo standard of review in the instant matter.
In their first assignment of error, Plaintiffs contend that the trial court legally erred by granting Axis's cross motion for summary judgment based on negligence under La.Civ.Code art. 2317.1, which provides:
Plaintiffs argue that the trial court should have used La.Civ.Code arts. 2696-97 and determined that Axis was strictly liable as the wheelchair's lessor. A lessor's warranty against vices or defects is codified at La.Civ.Code art. 2696 and provides:
This warranty "also encompasses vices or defects that are not known to the lessor. However, if the lessee knows of such vices or defects and fails to notify the lessor, the lessee's recovery for breach of warranty may be reduced accordingly." La.Civ. Code art. 2697.
With respect to the instant matter, the trial court referenced the Maricle, 14-1249, opinion in its July 23, 2015 written reasons for judgment and stated that "the only remaining issue before this court is whether or not Axis negligently inspected the wheelchair." The trial court noted that "Mr. Maricle has alleged that he was injured by a defective thing, a wheelchair, owned or leased by Axis. As such, La. C.C. art. 2317.1 is the applicable substantive law[.]" We find that the trial court's reliance on La.Civ.Code art. 2317.1 was erroneous as it was not the law of the case, which argument was advanced by Axis's counsel at the hearing on the cross motions for summary judgment and is discussed
Additionally, liability under La. Civ.Code art. 2317.1 requires proof that "`the thing was in the defendant's custody and control[.]'" Davis v. Am. Legion Hosp., 06-608, p. 3 (La.App. 3 Cir. 11/2/06), 941 So.2d 712, 714 (quoting Roberson v. Lafayette Oilman's Sporting Clays Shoot, Inc., 05-1285, p. 5 (La.App. 3 Cir. 4/12/06), 928 So.2d 703, 705-06). "Custody and control is largely a question of fact, not law[.]" Hesse v. Champ Serv. Line, 05-1565, p. 3 (La.App. 3 Cir. 6/7/06), 933 So.2d 247, 250, writs denied, 06-2156, 06-2176 (La. 11/22/06), 942 So.2d 555, 556. "`[C]ustody' or `garde' of a thing cannot lie in both an owner and a lessee simultaneously." Pamplin v. Bossier Parish Cmty. Coll., 38,533, p. 7 (La.App. 2 Cir. 7/14/04), 878 So.2d 889, 893, writ denied, 04-2310 (La. 1/14/05), 889 So.2d 266 (quoting Guillory v. Foster, 93-996 (La.App. 3 Cir. 3/2/94), 634 So.2d 1372, 1375). In this case, the facts show that Axis did not have garde of the wheelchair after delivering it to Mr. Maricle on January 8, 2013. The trial court, therefore, erred by using La. Civ.Code art. 2317.1 in its analysis.
Moreover, Axis never cited La.Civ.Code art. 2317.1 as a basis for liability in its cross motion for summary judgment. The use of La.Civ.Code art. 2317.1 was also rejected by the trial court at the June 30, 2014 hearing, wherein it denied Axis's original motion for summary judgment by stating the following with respect to Plaintiffs' pleadings:
Since this matter involves the granting of a motion for summary judgment, we will perform a de novo review. In this case, Plaintiffs attempted to show the existence of a lease by attaching the following exhibits in support of their motion for summary judgment and in opposition of Axis's cross motion for summary judgment:
The foregoing shows that the trial court ignored the evidence indicating that Axis leased the wheelchair to Plaintiffs. The trial court should have used La.Civ. Code arts. 2696-97 in its analysis, which is discussed in more detail below. Accordingly, the trial court committed legal error by granting Axis's cross motion for summary judgment based on negligence under La.Civ.Code art. 2317.1, and its judgment is reversed in this regard.
In their second assignment of error, Plaintiffs contend that the trial court legally erred in denying their motion for summary judgment and granting Axis's cross motion for summary judgment since it had proof that Axis leased a defective wheelchair to Mr. Maricle and that he was injured due to the defect as provided in La.Civ.Code arts. 2696-97. In support, Plaintiffs contend that Louisiana's lease articles apply to moveables, which encompasses a lessor's warranty against hidden defects. Plaintiffs contend that they are not required to prove the cause of the defect in light of Marien v. General Insurance Co. of America, 02-545 (La.App. 3 Cir. 12/11/02), 836 So.2d 239.
In Marien, the plaintiff pilot was injured in an airplane crash and brought suit for damages against the defendant, Barham Bros., Inc., the plane's owner and lessor. The defendant argued on appeal that the trial court erred in finding it liable without proof of a defect. We noted that the trial court found that a defect existed, according to its reasons for judgment, because "it accepted as fact that the control stick jammed causing the accident[,]" which led to the trial court's finding that "Barham Bros., as lessor of the aircraft, was strictly liable for the defective condition of the aircraft." Id. at 243. The defendant further argued that the trial court erred by holding that the plaintiff did not need to prove the defect's cause. We indicated that it was undisputed that the plaintiff leased the plane from the defendant such that the trial court correctly applied La. Civ.Code art. 2695, which stated:
Id. at 243. We noted that "`[t]his provision applies to the lease of both immovables and movables.'" Id. (quoting Walnut Equip. Leasing Co., Inc. v. Moreno, 26,004 (La.App. 2 Cir. 9/21/94), 643 So.2d 327, 331). We stated that in order to recover under La.Civ.Code art. 2695, "it is not necessary to prove the cause of the defect[]" and "[a] lessee must prove only the existence of the defect." Id. We held that in light of the trial testimony and circumstantial evidence, it was "sufficient to show that it is more probable than not that a defect in the plane existed and caused the accident." Id. at 245.
Even though Marien references La.Civ. Code art. 2695, which was revised in 2005, its principles are codified in La.Civ.Code arts. 2696-97. Shubert v. Tonti Dev. Corp., 09-348 (La.App. 5 Cir. 12/29/09), 30 So.3d 977, writ denied, 10-241 (La.4/9/10), 31 So.3d 393. We, therefore, use Marien
In addition to the evidence discussed in the section above, Plaintiffs attempted to prove the existence of a defect by attaching the June 30, 2014 hearing transcript wherein Axis's counsel stated that approximately three months following its delivery of the wheelchair to Mr. Maricle, "the back of the wheelchair ripped out and Mr. Maricle fell and re-injured himself[.]" Therein, Axis's counsel admitted that there was "no evidence that Axis knew or could have known about whatever defect was in the fabric of the wheelchair upon delivery." Plaintiffs attached the deposition testimony of Dalton's corporate representative, Jim Lein, who testified that he was unsure as to how the wheelchair came apart. Plaintiffs also attached Mr. Maricle's deposition testimony wherein he indicated that the wheelchair back came apart during its ordinary use causing him to fall onto the pavement and sustain injuries. In its motion for summary judgment, Plaintiffs pointed to Axis's First Supplemental and Amending Cross Claim wherein it confessed that the wheelchair it rented was defective as follows:
Plaintiffs attached Axis's Designation of Record for Appeal requesting that the following portions of the record be designated: the transcripts of all hearings prior to September 9, 2014, and all exhibits and pleadings filed prior to September 9, 2014. In its opposition to Axis's cross motion for summary judgment, Plaintiffs attached Axis's discovery responses wherein it stated that Jeff Johnson and Devereaux MaNeaux "[w]ill testify about the wheelchair at issue, rental of the wheelchair to plaintiff."
Accordingly, the trial court legally erred in denying Plaintiffs' motion for summary judgment and granting Axis's cross motion for summary judgment since it had proof that Axis leased a defective wheelchair to Mr. Maricle and that he was injured due to the defect as provided in La.Civ.Code arts. 2696-97. The trial court's judgment is, therefore, reversed in this regard.
In their third assignment of error, Plaintiffs contend that the trial court erred
The "law of the the case" doctrine provides that:
Hernandez v. Louisiana Workers' Comp. Corp., 15-118, p. 5 (La.App. 3 Cir. 6/3/15), 166 So.3d 456, 459 (citations omitted). Since the doctrine is discretionary, a prior appellate court ruling "does not preclude reconsideration of an issue on appeal, nor does it prevent the appellate court from reaching a different conclusion." Id. at 458. The doctrine also recognizes "the binding force of trial court rulings during later stages of the trial[.]" Kaleel v. Div. Transp., 00-803, p. 1 (La.App. 3 Cir. 8/23/00), 769 So.2d 110, 111, writ denied, 00-2976 (La. 12/15/00), 777 So.2d 1232 (quoting Petition of Sewerage & Water Bd. of New Orleans, 278 So.2d 81, 83 (La. 1973)).
Axis argues in opposition that the law of the case doctrine is applicable and points to this court's holding in Maricle, 14-1249, p. 3 (emphasis added), wherein we held:
Axis argues that the foregoing holding means that the trial court found that Plaintiffs' petition failed to assert a strict liability claim under La.Civ.Code arts. 2696-97, meaning that La.Civ.Code art. 2317.1 was the applicable law of the case which the trial court in this matter was required to follow. We disagree with Axis as to the applicability of the law of the case doctrine for the following reasons.
Pending motions were heard in this matter on June 30, 2014, including Axis's original motion for summary judgment which it filed on May 9, 2014 wherein it denied any liability for its alleged negligence pursuant to La.Civ.Code art. 2317.1. In opposition, Plaintiffs argued that Axis was strictly liable as a lessor pursuant to La.Civ.Code arts. 2696-97. At the June 30, 2014 hearing, the trial court orally denied Axis's original motion for summary judgment,
The only issues on appeal in our previous case as asserted by Axis in its assignments of error were as follows: "the trial court erred in holding that [Axis's] original cross-claims prescribed[] and that the trial court erred in striking [Axis's] supplemental cross-claims as untimely." Maricle, 14-1249, p. 2. Axis, however, never specified as an assignment of error that its motion for summary judgment had been denied. Its specified errors only dealt with Axis's claims against Dalton. Moreover, Axis never asked this court to limit Plaintiffs' remedies based on the allegations in the pleadings. Axis's reliance on the Maricle, 14-1249, holding with respect to Plaintiffs' claims, therefore, is inapplicable considering Uniform Rules — Courts of Appeal, Rule 1-3, which provides, in pertinent part: "The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise." Since a lessor's liability pursuant to La.Civ.Code arts. 2696-97 was not presented as an issue in an assignment of error in Maricle, 14-1249, the law of the case doctrine is inapplicable in this matter.
Accordingly, the trial court erred in finding that the only remaining issue was for Axis's active negligence, and its judgment is reversed in this regard.
In their fourth assignment of error, Plaintiffs contend that the trial court erred in casting them with all of Axis's court costs, as a previous judgment dated August 13, 2014, cast Axis with certain court costs, and that judgment was appealed, affirmed, and final. Plaintiffs argue that should we rule in Axis's favor, it should only recover costs incurred following the August 13, 2014 judgment regarding Axis's motion for summary judgment.
We decline to address this assignment of error in light of our reversal.
The trial court's granting of a cross motion for summary judgment in favor of Defendant/Appellee, Axis Medical & Fitness Equipment, LLC, is reversed. All costs associated with this appeal shall be assessed to Defendant/Appellee, Axis Medical & Fitness Equipment, LLC.
