Leonar Ramirez v. Lighthouse Property Insurance Corporation, Taejoon D. Kim, Wilmer Hernandez, Wgw Construction & Remodeling, LLC, and Abc Insurance CompanyLeonar Ramirez v. Lighthouse Property Insurance Corporation, Taejoon D. Kim, Wilmer Hernandez, Wgw Construction & Remodeling, LLC, and Abc Insurance Company
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-11141, DIVISION “M-13”
Judge Roland L. Belsome
JENKINS, J., CONCURS IN THE RESULT
ATKINS, J., CONCURS IN THE RESULT
Steven B. Witman LAW OFFICES OF STEVEN B. WITMAN Arbor Walk Professional Center 381 Hwy. 21, Suite 205 Madisonville, LA 70447
COUNSEL FOR PLAINTIFF/APPELLANT
John B. Esnard, III Jimmy A. Castex, Jr. CASTEX ESNARD, L.L.C. 650 Poydras Street, Suite 2415 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
DECEMBER 15, 2021
In this tort suit, Plaintiff, Leonar Ramirez, appeals the trial court‘s summary judgment, which dismissed his claims against Defendant, Taejoon D. Kim, and his homeоwner‘s insurer, Lighthouse Property Insurance Corporation (Lighthouse), with prejudice. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
This case arises from a renovation project located at 2021 Napoleon Avenue, Defendant‘s residence. The facts are largely undisputed. Defendant hired Wilmer Hernandez and/or WGW Construction & Remodeling, L.L.C. (WGW) as the general contractor to perform the work. The general contractor hired Fidel Casanova, Plaintiff‘s cousin, as a subcontractor. Plaintiff learned of the job through his cousin and was working as an independent contractor.
On November 11, 2017, the last day of the job, Plaintiff was wоrking with Mr. Casanova to replace the wooden fascia on Defendant‘s porch. When the ladder slipped backwards, Plaintiff fell and sustained serious injuries to his ribs, left arm, elbow and thumb.
On November 6, 2018, Plaintiff filed a Petition for Damages against Mr. Hernandez,1 WGW,2 Mr. Kim, Lighthouse, and ABC Insurance Company, asserting negligence, strict liability and premises liability claims. After filing an answer, Defendant and Lighthouse filed a motion for summary judgment. After a hearing, the trial court granted the motion, and dismissed Plaintiff‘s claims against Defendant and Lighthouse. This devolutive appeal followed.
STANDARD OF REVIEW
It is well settled that motions for summary judgment are reviewed de novo on appeal. Maradiaga v. Doe, 15-0450, p. 4 (La. App. 4 Cir. 11/25/15), 179 So.3d 954, 957 (citations omitted).
DISCUSSION
On appeal, Plaintiff avers that the trial court erred in granting summary judgment on two issues: 1) whether Defendant owed a duty tо Plaintiff, and 2) whether the defective ladder and/or the concrete surface with dense overgrowth constituted an unreasonable risk of harm. Thus, the only issue before this Court is whether there are genuine issues of material fact that preclude summary judgment as a matter of law.
“The threshold issue in any negligence аction is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law.” Bufkin v. Felipe‘s La., LLC, 14-0288, p. 5 (La. 10/15/14), 171 So.3d 851, 855 (citations omitted). The duty of an owner or custodian of property to keep his property in a reasonably safe condition is the same whether based on custodial liability under
Cheramie v. Port Fourchon Marina, Inc., 16-0895, p. 4 (La. App. 1 Cir. 2/17/17), 211 So.3d 1212, 1215 (citation omitted)(footnote omitted).5
Consequently, under any of the theories of recovery, Plaintiff had to prove by the preponderance of the evidence that: (1) Defendant had ownership or garde/custody of the ladder and concrete surface, (2) the ladder and the concrete surface had a vice or defect that was in an unreasonably dangerous condition or created an unreasonable risk of harm; (3) Defendant knew or should have known it was in an unreasonably dangerous condition or created an unreasonable risk of harm; and (4) the damage was caused by the defect. McCloud v. Housing Authority of New Orleans, 08-0094, p. 3 (La. App. 4 Cir. 6/11/08), 987 So.2d 360, 362 (citing Seal v. State Farm Fire & Cas. Co., 00-2375, p. 10 (La. App. 4 Cir. 3/20/02), 816 So.2d 868, 875).6 Failure to prove one of these factors defeats Plaintiff‘s negligence claim.
The duty/risk analysis must be applied to make this determination. McCloud, 08-0094, p.3, 987 So.2d at 363. Under the duty/risk analysis, Plaintiff must establish that Defendant owed him a duty that was breached, which resulted in his injuries. A landowner or custodian of property has the duty to keep the property in a reasonably safe condition.
In his motion for summary judgment, Defendant argued that he did not owe a legal duty to Plaintiff, an independent contraсtor, who determined the means and methods for the job; and there was no evidence of a defect that constituted unreasonable risk of harm, or contributed to the accident. We agree.
The undisputed facts reveal that Plaintiff was an independent contractor. Plaintiff confirmed that he decided the manner and means by which to perform work and brought his own work tools. He also acknowledged that he was responsible to ensure workplace safety involving the use of equipment, including making sure that the ladder was stabilized on a solid level surface.
In his deposition, Plaintiff testified that he started working on the job on a Monday, and the accident happened the following Saturday. On Monday, he heard Defendant giving Mr. Casanova permission to use his extension ladder, which was the only ladder that would reach the work area. In order to allow Plaintiff and Mr. Casanova to work simultaneously, they decided to dismantle the extension ladder into two sections. The ladder was used the entire week in this manner. Plaintiff was unsure as to whether he was using the bottom portion of the ladder, which had a boot to stabilize it.
On Saturday, Plaintiff arrived at approximately 8:00 a.m. and the accident occurred at the end of the day, around 3:30 p.m. Plaintiff chоse the location and placement
In Plaintiff‘s opposition to Defendant‘s motion for summary judgment, he raised two defects concerning: 1) the ladder, and 2) the concrete surface covered with grass. As to the ladder, he asserts that Defendant directed Plaintiff to use the ladder. This assertion is misplaced as the uncontested testimony revealed that Plaintiff was responsible to bring his own equipment to the job, and Defendant had simply authorized the workers to use the ladder.
Plaintiff further asserted that the ladder was missing parts and pieces, therefore it was defective and presented an unreasonable risk of harm. The only evidence submitted in support of this contention were pictures of the ladder. Generаlly, a defendant has no duty to protect against an open and obvious hazard. Hooper v. Brown, 15-0339, pp. 8-9 (La. App. 4 Cir. 5/22/15), 171 So.3d 995, 1001. If the facts of a particular case show that the complained of condition should be obvious to all, the condition is not unreasonably dangerous and the defendant owes no duty to the plaintiff. Pitre v. La. Tech Univ., 95-1466, 95-1487 (La. 5/10/96), 673 So.2d 585, 591. It is thе court‘s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. Harris v. Pizza Hut of La., Inc., 455 So.2d 1364, 1371 (La.1984). Without further evidence or testimony concerning some unapparent defect in the ladder, any defect in the ladder evidenced by the pictures was open аnd obvious. In addition, Plaintiff used the ladder for five days prior to the accident without incident. Under these facts, the ladder was not in an unreasonably dangerous condition, thus Defendant did not owe any duty to Plaintiff concerning the ladder.
As to the concrete surface, Plaintiff asserts that it was covered with dense growth оver the concrete that required maintenance. Again, the status of the concrete surface was an open and obvious condition which was acknowledged by Plaintiff, who chose the location for the ladder. Significantly, there was no testimony that the concrete surface was uneven or thаt the overgrowth prevented Plaintiff from correctly stabilizing the ladder. Under these circumstances, the concrete surface did not create an unreasonable risk of harm; therefore, Defendant did not owe a duty to Plaintiff. Further, notably lacking was any evidence from Plaintiff that indicates either of the аlleged defects contributed to or caused the accident. As a result, Plaintiff did not submit evidence to establish an unreasonably dangerous condition, a duty or causation.
In a similar case, the plaintiff, a handyman, was injured when he fell off of a ladder while removing Christmas lights from the exterior of the defendant‘s home. Barrow v. Brownell, 05-1627, p. 2, 938 So.2d 118, 120 (La. App. 1st Cir. 6/9/06). Plaintiff asserted that the defendant-homeowner was liable due to her “negligence in failing to maintain premises and/or ladder in safe condition; failing to maintain a proper lookout, creating and fostering and unreasonable risk of harm, and other acts of negligence and/or strict liability.” Id. When attempting to climb down the ladder, the bottom of the ladder slid outward, causing both the plaintiff and the ladder to fall to the ground. Id., p. 3, 938 So.2d at
Like Barrow, Plaintiff in this case decided when, where and how to do the job; he decided to work on a dismantled extension ladder and climbed it alone; and he did not establish how the ladder or the сoncrete with overgrowth contributed to the accident. Plaintiff attempts to distinguish Barrow on grounds that the handyman had been using the same ladder to remove lights for seventeen years. However, Plaintiff in this case used the ladder for a sufficient amount of time for the week prior, and he was responsible for determining the mаnner in which to perform the job. Further, he fails to establish how the condition of the ladder or the concrete contributed to the accident. Accordingly, summary judgment was appropriate.
CONCLUSION
Given that Plaintiff could not prove the factors necessary to his claim, there are no genuine issues of material fact that would preclude summary judgment as a matter of law. Therefore, summary judgment was appropriate. For these reasons, the trial court‘s granting of summary judgment dismissing Defendant and his homeowner‘s insurer with prejudice is affirmed.
AFFIRMED