193 So. 3d 342
La. Ct. App.2016Background
- Cindy Vail sued Schiro Brothers Shoe Store (Schiro) and Told, LLC after tripping on a yellow step/parking barrier outside the Schiro store and sustaining injuries.
- Told, LLC was the lessee of the premises; William Deris (a Schiro principal) was lessor and had a prior ownership/operation history of the business and property.
- Lease provisions: Lessor (Deris) agreed to be responsible for repair and maintenance of the exterior, including parking lots; Lessee (Told) was restricted from making alterations and had limited insurance/repair payment obligations (first $500 reimbursement); sidewalks restricted to ingress/egress.
- After discovery, Told moved to re-urge summary judgment arguing it lacked custody/control of the defective step (an essential element under La. C.C. art. 2317.1). Schiro opposed, citing other lease clauses and an indemnity provision.
- Trial court granted Told’s re-urged motion and dismissed claims against Told; the Fifth Circuit affirmed, concluding Deris (lessor/Schiro) retained custody/control of the parking lot/step and Told had no duty under art. 2317.1; indemnity did not require denial of summary judgment because indemnity excluded lessor negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Told had custody/control (garde) of the defective step under La. C.C. art. 2317.1 | Vail/Schiro argued lease language and facts create dispute over which party bore responsibility for the accident area | Told argued lease and Deris testimony show Deris (lessor) had exclusive repair/maintenance responsibility and Told lacked custody | Held: No genuine issue; Deris had custody/control, Told entitled to summary judgment |
| Whether lease is ambiguous on exterior/parking lot responsibility | Schiro argued clauses (e.g., $500 repair clause, compliance with laws) create ambiguity as to who controls the area | Told argued the $500 clause is reimbursement only and other clauses and prohibitions show lessee lacked right to alter or control exterior | Held: Clauses construed together show lessor retained maintenance/control; not ambiguous in Told’s favor |
| Whether Told’s indemnity obligation prevents dismissal at summary judgment | Schiro argued indemnity clause requires Told to indemnify and defend Schiro, so Told should remain in suit until resolution | Told and court noted indemnity excludes damages arising from lessor’s negligence; if lessor at fault, indemnity not triggered | Held: Indemnity clause does not defeat summary judgment because any liability would arise from lessor’s negligence, which is excluded from indemnity |
| Whether summary judgment was premature or improper | Schiro argued factual disputes and trial judge’s written reasons flawed | Told argued evidence admitted on motion established absence of factual support for essential element (custody) | Held: De novo review shows Told met burden; opposing party failed to produce sufficient factual support; summary judgment proper |
Key Cases Cited
- Burns v. Sedgwick Claims Mgmt. Servs., 165 So.3d 147 (La. App. 5 Cir. 2014) (standard of appellate review for summary judgment)
- Duncan v. U.S.A.A. Ins. Co., 950 So.2d 544 (La. 2006) (summary judgment standard)
- Dupree v. City of New Orleans, 765 So.2d 1002 (La. 2000) (custody/garde analysis focuses on right of direction/control and benefit derived)
- Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461 (La. 1991) (bifurcated ownership/possession facts for custody determination)
- Wiltz v. Floor & Décor Outlets of Am., 186 So.3d 1204 (La. App. 5 Cir. 2016) (elements required under La. C.C. art. 2317.1)