327 So.3d 521
La. Ct. App.2021Background
- Ascension Plaza, L.L.C. developed a shopping center in Gonzales; Donnie Jarreau Construction (Jarreau) was the general contractor; Ascension Plaza sold the center to Shriver Investments in 2009.
- On Oct. 11, 2011, Darlene Ordeneaux tripped on an unpainted concrete traffic flow barrier in the shopping-center parking lot and was injured.
- Ordeneaux sued in 2012 (initially against Shriver); in 2015 she amended to add Ascension Plaza and Jarreau, alleging the barrier was an unreasonably dangerous condition.
- Defendants raised peremption under La. R.S. 9:2772 (five-year bar for construction/design claims); the trial court sustained the peremption exception but permitted Ordeneaux to amend.
- Ordeneaux’s later amended petition alleged owner liability under La. C.C. art. 2317.1 (failure to warn/knowledge of defect); Ascension Plaza and its insurer moved for summary judgment, arguing peremption and lack of proof of garde/custody.
- The trial court granted summary judgment, dismissing Ordeneaux’s claims with prejudice; the court of appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether construction/defect claims are perempted under La. R.S. 9:2772 | Ordeneaux argued her amended claims were negligence/owner claims outside the peremptive construction-defect bar | Defendants argued the claims arise from construction/defect and are time-barred by the five-year peremptive period | Court held construction/defect claims are perempted; plaintiff’s attempt to recast them does not avoid La. R.S. 9:2772 |
| Whether recharacterizing claims as "general negligence" avoids peremption | Ordeneaux contended relabeling liability as general negligence (owner-created hazard) removes the claim from 9:2772 | Defendants maintained substance controls; claims seeking recovery for construction deficiencies are governed by 9:2772 regardless of label | Court held substance governs; claims rooted in construction remain perempted; remaining owner-based claims fall under art. 2317.1 |
| Whether the fraud exception to peremption applies | Ordeneaux argued fraud exception tolled peremption | Defendants noted plaintiff pleaded no fraud particulars or intent | Court held fraud exception inapplicable—petition contains no particularized allegations of fraud or intent |
| Whether plaintiff produced evidence of garde/custody required by La. C.C. art. 2317.1 | Ordeneaux relied on allegations that Ascension Plaza owned/created the barrier and therefore was responsible | Defendants pointed to record evidence showing Ascension Plaza had sold the center before the accident and moved for SJ based on absence of factual support for garde | Court held plaintiff did not produce factual support creating a genuine dispute as to garde; summary judgment proper for defendants |
Key Cases Cited
- In re Succession of Beard, 147 So. 3d 753 (La. App. 1 Cir. 2014) (appellate review of summary judgment is de novo)
- Hines v. Garrett, 876 So. 2d 764 (La. 2004) (court assesses existence of genuine issue, not credibility)
- Smith v. Our Lady of the Lake Hosp., Inc., 639 So. 2d 730 (La. 1994) (defines "material" fact for summary judgment)
- Guillory v. The Chimes, 240 So. 3d 193 (La. App. 1 Cir. 2017) (opposition must present more than conclusory allegations)
- Larson v. XYZ Ins. Co., 226 So. 3d 412 (La. 2017) (materiality assessed in light of applicable substantive law)
- Tomaso v. Home Depot, U.S.A., Inc., 174 So. 3d 679 (La. App. 1 Cir. 2015) (elements required to establish liability under La. C.C. art. 2317.1)
- Schilling v. Bernhard Bros. Mech. Contractors, LLC, 186 So. 3d 658 (La. App. 1 Cir. 2013) (fraud must be pleaded with particularity and requires intent)