154 So. 3d 643
La. Ct. App.2014Background
- Plaintiff Daffney Davis leased condo unit #381 in Riverside Court Condominiums; on Jan. 21, 2011 she was severely scalded by bathwater and suffered extensive burns.
- Plaintiff sued unit owner/lessor Gulf Property Investments, L.L.C. (GPI), the condominium association (RCCA), the association's insurer, and a plumbing contractor, asserting strict liability, negligence, and breach of lessor’s warranty.
- GPI moved for summary judgment arguing it lacked custody/control of the central hot-water system (a common element), the lease waived lessor warranties, and GPI had no notice of any defect; plaintiff moved for partial summary judgment on liability.
- The Declaration and RCCA bylaws allocated maintenance/operation of central services (including boilers/hot-water) to the association; only RCCA employees had access to locked boiler rooms; GPI owned only a fractional interest in common elements.
- Trial court granted GPI’s summary judgment and denied plaintiff’s partial summary judgment; on de novo review the appellate court affirmed, finding GPI lacked custody/control and notice to impose strict liability or negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Strict liability under art. 2317/2317.1 — custody/garde of the dangerous thing | GPI, as unit owner/lessor, is strictly liable for defects on the premises and cannot avoid liability by pointing to common-element origin; lessor warranties apply | The overheated water came from a central hot-water system that is a common element under RCCA control; GPI lacked custody/control so cannot be strictly liable | GPI is not strictly liable: plaintiff failed to show GPI had custody/control of the hot-water system |
| Lessor’s warranty and waiver (C.C. arts. 2696–2699; La. R.S. 9:3221) | Lease waiver is ineffective or inapplicable because tenant could not control central boiler and defect implicated health/safety | Lease contained a waiver of responsibility; even so, GPI lacked custody and had no notice; waiver ineffective only for defects seriously affecting health/safety but plaintiff didn’t overcome custody/notice problems | Waiver argument insufficient to impose liability; absence of custody/notice dispositive |
| Negligence — notice and opportunity to remedy | GPI owed duty to inspect/maintain and should have known about overheating; failed to warn or repair | GPI had no access/control of boilers and no complaints/notice; RCCA employees performed temperature checks; no evidence GPI knew or should have known | No genuine issue of material fact on notice; GPI entitled to judgment as a matter of law |
| Statutory insurance and unit-owner liability (La. R.S. 9:1123.112) | Association insurance statute implies unit owners bear liability for common-element risks | Inclusion of unit owners as insureds in association policy does not create substantive liability where owner lacks custody/control | Statute/insurance does not impute liability to GPI absent proof of custody/control or fault |
| Adequacy of discovery | Plaintiff contends key witness (former RCCA employee) not deposed; summary judgment premature | Plaintiff had multiple years for discovery; no showing deposition would create facts tying GPI to custody/notice | No probable injustice shown; summary judgment not delayed; plaintiff failed to identify material facts that would preclude judgment |
Key Cases Cited
- Dupree v. City of New Orleans, 765 So.2d 1002 (La. 2000) (custody/garde, not mere ownership, governs art. 2317 liability)
- Graubarth v. French Market Corp., 970 So.2d 660 (La. App. 4th Cir.) (custody/garde may be shared; focus on right of direction/control)
- Jones v. Peyton Place, Inc., 675 So.2d 754 (La. App. 4th Cir.) (elements required to establish liability under arts. 2317/2317.1)
- Wiggins v. Ledet, 648 So.2d 797 (La. App. 4th Cir.) (owner’s duty to keep property reasonably safe and to discover/uncover hazards; knowledge required)
- Blackwell v. Hanover Ins. Co., 551 So.2d 47 (La. App. 1st Cir.) (liability allocation between unit owner and association for limited/common elements)