Lead Opinion
|,The plaintiffs/appellants
FACTS AND PROCEDURAL HISTORY
On August 20, 1995, at approximately 12:35 a.m., Antonio Dominique Kenny (“Antonio”), the two-year old son of Clarence L. Kenny and Melissa A. Simon, fell from a building located at 800 St. Charles Avenue and Julia Street known as the Hummingbird Hotel. As a result of this fall, Antonio suffered severe and permanent disabling injuries.
In their petition for damages, Clarence Kenny and Melissa Simon alleged that Antonio’s fall was an accident caused by a defect in the premises, “... as a result of broken, inadequate, or dangerous door, locks, -windows, fire escapes and other appurtenances of the building.” The appellants assert that the child fell from “a window or fire escape on an upper floor of the hotel portion of the Hummingbird Hotel and Grill.” They also assert that at the time of the accident they were both working at the Hummingbird Grill located on the “ground floor of the premises”, and that their five children, ages seven and younger, were sleeping on either the second or third floor of the Hummingbird Hotel. They further alleged that they would check on the children “approximately every 15-20 minutes to see that they continued to sleep and conditions were satisfactory.” At approximately 12:45 a.m., Melissa Simon allegedly checked on the children and found that Antonio was missing from the room. Specifically, in paragraph XI of the original petition, the plaintiffs alleged:
“... Antonio Dominique Kenny got up from his bed and went from the hotel room out into the hallway, through a door which could not be locked, due to a broken latch; and, thereafter, the said child walked down a hall, descended a short flight of stairs, proceeded through an open fire door which should have*949 been closed, and ultimately entered a room from which the hall door may have been missing. Then, the said child ^apparently went out an open window, which window was unprotected, was very low to the floor and constituted a hazard or attractive nuisance. Then the minor child was on the fire escape and thereafter fell onto the street below ...”
On August 2, 2011, the Wongs filed a motion for summary judgment, asserting that the plaintiffs could not sustain their burden of proof pursuant to La.C.C.P. art. 966(C)(2). In support of their motion for summary judgment, the Wongs submitted the depositions of Elsie Gatterer (maiden name Elsie Knapp), an eye witness to the accident, and New Orleans Police Department Officer Granville Summers, the accident investigator, as well as a copy of the commercial lease of the building entered into by the Wongs and the Hummingbird Hotel, Inc.
Ms. Gatterer, the only known eye-witness to Antonio’s fall, testified that her vantage point was the Kinko’s print shop, where she was working the night shift on the evening of the incident.
Later that night, Officer Granville Summers, from the New Orleans Police Department (“NOPD”), child abuse division, was summoned to the scene of the accident. He arrived on the scene after the child had been taken to the hospital. Officer Summers determined that Antonio lived with his parents, Clarence Kenny and Melissa Simon, and four siblings, all under seven years of age, in Apartment A-6, an apartment on the other side of the building from where the child fell. Clarence Kenny and Melissa Simon were both employees at an all-night bar and grill on the ground floor of the building known as the Hummingbird Bar and Grill. Officer Summers determined after interviewing Clarence Kenny that he was Antonio’s father. On the night of the incident, Officer Summers walked through the building with Clarence Kenny and observed the location of Apartment A-6. He concluded that Antonio, a two-year old child, could not have traversed through several flights of stairs, heavy closed doors and windows which were between his parents’ apartment in the building and the Julia Street side of the building alone. After his investigation, he could not determine from which floor the child fell or the trajectory of the fall. However, he did conclude that at the time of the incident the child was with his father, Clarence Kenny, despite the father’s denial. Officer Summers speculated that
As noted above, at the time of the accident, the building was owned by Kong Wong, Charlie Tong and Harry Wong, who had leased the building to the Hummingbird Hotel, Inc. The lessees were Harry J. Hillensbeck and Bertha Hillensbeck. The obligations of the lessee were guaranteed by the co-defendants Harry J. Hillensbeck and Bertha Hillensbeck. The June 1,1994 lease provided that the lessee accepts the leased premises in its present condition and agrees to pay to make any repairs, replacements, and alterations necessary to comply with all governmental requirements, including those contained in the New Orleans Building Code and assumed all liability for the premises. Clarence Kenny and Melissa Simon allegedly sublet an apartment from the Hillensbecks/Hum-mingbird Hotel, Inc.
After a hearing on the Wongs’ motion for summary judgment, the trial court ruled in favor of the Wongs, dismissing the plaintiffs’ claims against them. The plaintiffs/appellants are only appealing the judgment insofar as it dismissed their claims against defendant Kong Wong.
| fiSTANDARD OF REVIEW
Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 2004-0066 (La.7/6/04),
DISCUSSION
The issue presented on appeal is whether the trial court correctly granted summary judgment dismissing the plaintiffs/appellants’ claims against Kong Wong.
|7The appellants assert that the defect in the fire escape was a contributing factor to the fall. Under Louisiana law,
However, pursuant to La. R.S. 9:3221, a lessor may shift responsibilities to a lessee, including liability for injury resulting from defects in the property, because contracting parties can waive warranties and obligations in the codal articles and statutes, so long as such waivers do not affect the rights of others and do not harm the public good. Tassin v. Slidell Mini-Storage, Inc.,
At the time of Antonio’s accident, La. R.S. 9:3221 provided:
§ 3221. Assumption of responsibility by lessee; liability of owner
The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not ha-ble for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.
Based upon the La. R.S. 9:3221, the lease between Hummingbird Hotel Inc., and Kong Wong as the owner/lessor, Kong Wong could not have had any liability | ^unless the accident was caused by the alleged defect in the leased premises, which Kong Wong knew or should have known about or had received notice of and failed to remedy within a reasonable time.
The sole argument raised by appellants to establish that the defects in the fire escape were so visible that Kong Wong knew or should have known of the defects in the premises is that Kong Wong admitted in his deposition testimony that he occasionally drove by the building. He asserts that he did not think that it was his responsibility to maintain the building or assuring that the building was in compliance with building and fire codes nor did he admit or acknowledge that there were any visible, defects or code violations. There is no evidence to support the appellants’ assertions that the owner of the building, Kong Wong, had any knowledge or notice of the alleged defects. The appellants have failed to prove an essential prong of La. R.S. 9:3221, i.e. owner knowledge and notice. Moreover, the original lease in this matter clearly places any potential liability with the lessees, the Hil-lensbecks and Hummingbird Hotel, Inc.
The appellants also maintain that the fire escape was being used as a balcony thereby creating an unreasonable risk of harm to occupants of the building. In support of their allegation they offered a photograph depicting a chair on the fire escape landing on or around the time of the accident.
The Wongs have established that pursuant to the commercial lease, the Hummingbird Hotel, Inc., and the Hillensbecks have
The appellants provided a report from their building expert, Paul Colman, which asserted that the defect in the premises was primarily that the fire escape was being used as a balcony; as such there were building code requirements that were not met. In support of this assertion he notes that in a police accident report there were photographs taken of the fire escape with the chair on it. However, no clear time line has been established to reflect how, why and when the chair was on the fire escape, nor has any direct testimony been provided to establish that the fire escape was being used as a balcony. More important, there is no evidence in the record to establish any connexity whatsoever between the child’s fall and the fire escape. The appellants’ claim that the fire escape was being used as a balcony was pure unsubstantiated speculation and has no causal link to the accident.
Contrarily, Kong Wong provided an affidavit from his expert, Leonard Quick, who maintains that there were no defects or building code violations at the time of the accident. Clearly, the trial court took all of the evidence, testimony and affidavits into consideration when making its decision to grant the Kongs’ motion for summary judgment. Appellants have failed to establish by competent evidence that any actual defects or conditions, at the time of the accident, led to an unreasonable risk of harm relevant to the child’s accident.
The appellants have failed to provide any competent or factual evidence as to what or who caused Antonio to fall. Based on the plaintiffs/appellants’ petition for damages, the depositions of Ms. Gat-terer, Officer Granville, the discovery requests and the entire record, the appellants have never established the cause of | inthe child’s fall nor its relationship to any alleged defect or unreasonable risk of harm in the lease premises.
The record indicates that Clarence Kenny, one of the original plaintiffs in this suit, failed to appear for depositions and respond to motions to compel, and his whereabouts are allegedly in question. The appellants have failed to provide the trial court with any relevant evidence or statement from Clarence Kenny, who the appellants named as a witness in this matter. The appellants’ failure to provide any evidence of Clarence Kenny’s involvement either by written witness statements, deposition or by affidavit in opposition to the Wongs’ motion for summary judgment raises a presumption that his testimony would have been unfavorable to them. See Driscoll v. Stucker, 04-0589, p. 18 (La.1/19/05),
The record is void of any evidence establishing genuine issues of material fact that would impose liability upon the defendants under appellants’ claims in the original
Based on the facts, evidence and the record as a whole, we find that there are no genuine issues of material fact in dispute. The appellants are unable to provide factual support sufficient to carry their evidentiary burden at trial. We find that summary judgement in this matter was appropriate. Therefore, we affirm the trial court’s granting of summary judgment and dismissing the appellants’ claims with prejudice.
AFFIRMED
BELSOME, J., concurs with reasons.
Notes
. At the present time, several siblings of Antonio Dominique Kenny are his procedural representatives.
. Antonio was born on January 31, 1993 and subsequently died in November of 2005, at the age of twelve.
. Harry Wong died in 1998.
. There is some question as to whether or not she had a community interest in the leased premises as it was Harry Wong's separate property which he inherited from his parents.
. Kinko’s is located directly across the street from the Hummingbird Hotel building on St. Charles Avenue and Julia.
. As per Officer Summers police report, the four other children were removed and placed into protective custody. Melissa Simon and Clarence Kenny were initially charged with juvenile cruelty. After further investigation, they were charged with four additional counts of juvenile cruelty.
. La. C.C. art. 2695 (1870), provided:
The lessor guarantees the lessee against all vices and defects of the thing, which may prevent its being used even in the case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee, and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.
Former article 2695 was revised by La. Acts 2004, No. 821, § 1, effective Januaiy 1, 2005. The substance of former article 2695 is restated in current La.C.C. arts. 2696 and 2697.
Concurrence Opinion
concurs with reasons.
|, Considering the troubling circumstances of this case and the applicable statutory requirements, I respectfully concur in the result reached by the majority’s opinion.
To overcome summary judgment and establish a liability claim on the part of an owner who has contractually passed on responsibility for the condition of his property to his lessee under La. R.S. 9:8221, as in this case, a plaintiff must establish that (1) he sustained damages; (2) there was a defect in the property; and 12(3) the lessor knew or should have known of the defect. Jamison v. D’Amico, 06-0842, p. 8 (La.App. 4 Cir. 3/14/07),
Based on the narrow set of facts and the applicable statute in this case, the plaintiffs have not established a genuine issue of material fact regarding defendant’s knowledge of any alleged defect. Mr. Wong specifically denied any knowledge as to defects on the premises. Additionally, the property was under a lease that transferred responsibility and liability for code violations and defects to the lessee. Thus, the record before us fails to establish the necessary existence of a genuine issue of material fact pertaining to this element of the plaintiff’s claim. Therefore, the defendant was entitled to judgment as a matter of law.