Pillow v. Roymar Ltd. Partnership
197 So. 3d 348
La. Ct. App.2016Background
- Plaintiff David Pillow, a probation coordinator, fell on stairs at 711 Second Street (leased by Jefferson Parish from Roymar) on August 27, 2007 and sued Roymar for damages alleging a loose handrail and slippery steps.
- The lease (2003, renewed) contained a clause by which the lessee (Parish) assumed responsibility for premises defects, subject to La. R.S. 9:3221 (owner liable only if owner knew or should have known of defect or received notice).
- Roymar moved for summary judgment asserting the lease shifted responsibility to the Parish and that Roymar had no notice or knowledge of the loose handrail or other defects.
- Roymar supported its motion with Pillow’s deposition and an affidavit from Royce Ehret (Roymar partner) denying notice or custody of the premises; Pillow filed a late opposition (day of hearing) including a post-deposition affidavit and expert affidavits alleging slippery treads and other defects.
- The trial court struck portions of Pillow’s late affidavits (and expert statements) as inconsistent and untimely, considered only the loose handrail theory, and granted summary judgment for Roymar because Pillow produced no factual proof Roymar knew or should have known of the defect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was improper because factual inferences should favor Pillow | Pillow argued court must draw all reasonable inferences for non-mover | Roymar argued absence of factual support on essential element (notice) entitles it to judgment | Court affirmed: de novo review finds no genuine issue of material fact for trial |
| Whether Pillow’s post-deposition affidavit and experts should be considered (alleged contradiction) | Pillow said affidavit filled-in omitted causal facts (slippery step) and experts raised other causes | Roymar and court argued affidavit contradicted deposition and was untimely; expert opinions relied on stricken facts | Court affirmed striking/invalidation of the contradicted/untimely portions and refused to broaden causation beyond deposition |
| Whether Roymar had actual or constructive notice (La. R.S. 9:3221) | Pillow argued owner should have known (Ehret visited building ~twice/year; prior slip) and other code/permit violations created issues | Roymar showed no complaints/notices to owner; Ehret denied knowledge and stated no custody; visits were informal and not inspections | Court held Roymar met initial burden and Pillow failed to produce factual support that Roymar knew or should have known; summary judgment proper |
| Whether Roymar waived or had to plead R.S. 9:3221 defense | Pillow argued Roymar failed to plead the affirmative defense in its answer | Roymar treated the lease/defense in its motion and evidence | Court declined to consider argument raised first on appeal (issue not preserved) |
Key Cases Cited
- Pizani v. Progressive Ins. Co., 719 So.2d 1086 (La. App. 5 Cir. 1998) (standard of appellate de novo review of summary judgment)
- Guillory v. Chapman, 44 So.3d 272 (La. 2010) (trial court may refuse to consider late-filed affidavits under CCP art. 966 timing)
- Chau v. Takee Outee, Inc., 707 So.2d 495 (La. App. 4 Cir. 1998) (purpose and scope of La. R.S. 9:3221; ‘‘should have known’’ not to be construed to impose expansive inspection duties on lessor)
- Allstate Ins. Co. v. Veninata, 971 So.2d 420 (La. App. 4 Cir. 2007) (owner generally liable for leased premises absent contractual assumption)
- Worthmore Capital, LLC v. Milco, 101 So.3d 478 (La. App. 5 Cir. 2012) (district court rule and exclusion of untimely summary judgment papers)
- Stuckey v. Riverstone Residential SC, LP, 21 So.3d 970 (La. App. 1 Cir. 2009) (evidence required to show lessor should have known of defect under R.S. 9:3221)