Simon v. Hillensbeck
100 So. 3d 946
La. Ct. App.2012Background
- Antonio Kenny, age 2, fell from the Hummingbird Hotel building on 8/20/1995, sustaining severe, permanent injuries.
- Clarence Kenny and Melissa Simon sued Kong Wong, the Hummingbird Hotel, Inc., and related owners/lessees, alleging defects in the premises caused the fall.
- The building was leased to Hummingbird Hotel, Inc.; lessees Hillensbeck and Hummingbird Hotel, Inc. were obligated to repair and ensure code compliance; owners Kong Wong, Tong, and Harry Wong were lessors.
- The defendants moved for summary judgment under La. C.C.P. art. 966(C)(2) on 8/2/2011, supported by an eye-witness deposition and officer’s report, plus the lease.
- The trial court granted summary judgment in favor of Kong Wong; appellate courts affirmed, holding no genuine issues of material fact and no evidence of ownership knowledge of defects.
- The statutory framework at issue is La. R.S. 9:3221, which shifted liability to the lessee absent owner knowledge or notice; the record showed no such knowledge or notice by Kong Wong.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability of owner under 9:3221 when lessee assumes responsibility | Kenny asserts owner knowledge of defects? (Kenny) | Wong argues lease shifted liability to lessee; no owner knowledge | Summary judgment proper; no material fact showing owner knowledge. |
| Causation link between alleged fire-escape defect and fall | Defect in premises caused fall | No evidence linking fire escape defect to fall; lessee responsible per lease | No genuine issue of material fact; no causal link established. |
Key Cases Cited
- Allstate Ins. Co. v. Veninata, 971 So.2d 420 (La.App. 4 Cir. 2007) (owner-tenant liability under lease and code provisions)
- Tassin v. Slidell Mini-Storage, Inc., 396 So.2d 1261 (La.1981) (waiver of warranties can transfer liability to lessee)
- Racine v. Moon’s Towing, 817 So.2d 21 (La.2002) (summary judgment standard and evidentiary burden)
- Driscoll v. Stucker, 893 So.2d 32 (La.2005) (adverse presumption for uncalled witnesses in summary judgment)
- Jamison v. D’Amico, 955 So.2d 161 (La.App. 4 Cir. 2007) (knowledge element in 9:3221 analysis)