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NOT DESIGNATED FOR PUBLICATION ROXANN S. ROWE WIFE OF/AND KEITH HUG VERSUS * CITY OF NEW ORLEANS, DOWNTOWN DEVELOPMENT DISTRICT OF NEW ORLEANS, JULIA H. KUNTZ, ABC INSURANCE COMPANY, JOHN DOE AND XYZ INSURANCE COMPANY * * * ******* FOURTH CIRCUIT STATE OF LOUISIANA * * NO. 2005-CA-1003 COURT OF APPEAL

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 97-21763, DIVISION "L-6" Honorable Kern A. Reese, Judge ****** Judge Patricia Rivet Murray ****** (Court composed of Judge Patricia Rivet Murray, Judge Dennis R. Bagneris, Sr., Judge Michael E. Kirby) Richard A. Tonry Michael C. Ginart, Jr. Kim C. Jones Richard A. Tonry, II Cullen A. Tonry LAW OFFICES OF TONRY AND GINART 225 Antibes West Mandeville, LA 70448 COUNSEL FOR PLAINTIFFS/APPELLANTS Kathy Lee Torregano

BERRIGAN, LITCHFIELD, SCHONEKAS, MANN, TRAINA & BOLNER, LLC 400 Poydras Street Suite 2000 - Texaco Center New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLEE REVERSED

This is a personal injury action arising out of a slip and fall on a city sidewalk. From the trial court's decision dismissing the abutting landowner, Julia Kuntz, as a defendant, the plaintiffs, Roxann Rowe and her husband, Keith Hug, appeal. For the reasons that follow, we reverse. FACTUAL AND PROCEDURAL BACKGROUND On December 12, 1996, Ms. Rowe was walking in the 300 block of Baronne Street when she tripped and fell over a piece of wood protruding from an empty planter located on the street side of the sidewalk. This suit followed against, among others, the alleged owner of the property abutting the sidewalk, Ms. Kuntz, and her insurer. In response, Ms. Kuntz filed a motion for summary judgment alleging that she was not liable to Ms. Rowe. The trial court granted Ms. Kuntz's motion for summary judgment. This appeal followed.

STANDARD OF REVIEW "Favored in Louisiana, the summary judgment procedure `is designed to secure the just, speedy, and inexpensive determination of every action' and shall be construed to accomplish these ends." King v. Parish Nat'l Bank, 2004-0337, p.7 (La. 10/19/04), 885 So. 2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)). Appellate courts review grants of summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Schmidt v. Chevez, 2000-2456, p.4 (La. App. 4 Cir.1/10/01), 778 So. 2d 668, 670. According to this standard, a summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 (B); Schmidt, 2000-2456 at p.3, 778 So. 2d at 670. The party seeking the summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. Allen v. Integrated Health Services, Inc., 32,196, p.3 (La. App. 2 Cir. 9/22/99), 743 So. 2d 804, 806. A fact is "material" if its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Schmidt, 2000-2456 at p.3, 778 So.2d at 670 (citing Moyles v.

Cruz, 96-0307 (La. App. 4 Cir. 10/16/96), 682 So.2d 326). Simply stated, a "material" fact is "one that would matter on the trial on the merits." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So. 2d 730, 751. Since the movant, Ms. Kuntz, will not bear the burden of proof at trial, it is not necessary that she negate all elements of Ms. Rowe's claims. Rather, she need only point out to the court the absence of factual support for one or more elements essential to Ms. Rowe's claims. Once Ms. Kuntz meets this initial burden, the burden shifts to Ms. Rowe to present factual support sufficient to establish her ability to satisfy the evidentiary burden at trial. If she fails to satisfy this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. King, 2004-0337 at p. 8, 885 So. 2d at 545-46; see also Coates v. Anco Insulations, Inc., 20001331, p.5 (La. App. 4 Cir. 3/21/01), 786 So. 2d 749, 753 (noting that the opponent to a properly supported motion for summary judgment may not rest on the mere allegations or denials of his or her pleadings, but must respond by affidavits or as otherwise provided by law setting forth specific facts showing that there exists a genuine issue of material fact for trial). DISCUSSION On appeal, Ms. Rowe asserts two assignments of error. First, she

contends that the trial court erred in failing to find that Ms. Kuntz owed her a duty under Section 146-193 of the Code for the City of New Orleans, which requires the landowner to "assume full responsibility for maintaining a clean and unobstructed right-of-way within their portion of sidewalk or banquette including the care and maintenance of street trees." Second, she contends that the trial court erred in failing to find Ms. Kuntz liable under La. C.C. art. 2315, the general negligence standard. We separately address each of these contentions. Section 146-193 addresses the minimum sidewalk treatment within the area of the City of New Orleans defined as the Downtown Development District, and it provides for the construction and repair of the sidewalks within the District and Vieux Carre. This section of the City ordinances provides in pertinent part as follows: (a) All new sidewalks or banquettes or repaved sidewalks or banquettes immediately adjacent to property located within the downtown development district which is defined as that area bounded by the uptown side of Iberville Street, the river side of South Claiborne Avenue, the downtown side of the Pontchartrain Expressway and the river, shall be paved, repaved, or constructed either with brick in the tan-medium brown color range or with Pennsylvania Bluestone in the blue-grey range. The department of streets and the clerk of council shall maintain as a public record, available for public inspection, a map and detailed plans which delineate the type of treatment for each sidewalk located within the downtown development district and Vieux Carre. * * * * * *

(3) Category C streets may be planted with street trees, pattern and construction as per detail series No. DDD-C on file. * * * * * * (g) All category C streets may be planted with street trees, species to be selected and approved by the park and parkway commission in cooperation with the downtown development district. . . Street trees shall be planted in the ground with metal tree grates suitable for pedestrian traffic. . . . Tree grates and tree guards will, if available be provided to the owners by the downtown development district. No stationary raised planters will be permitted on sidewalks within the downtown development district. * * * * * * (h) Property owners shall assume full responsibility for maintaining a clean and unobstructed right-of-way within their portion of sidewalk or banquette including the care and maintenance of street trees. It is the responsibility of the property owner to procure, plant, maintain and remove all trees, regardless of who constructed the sidewalk. (Emphasis supplied). Ms. Rowe contends that this ordinance unambiguously imposes responsibility for "street tree" planters on an abutting landowner. Ms. Kuntz counters that the ordinance refers to "street trees"; it does not refer to planters. Regardless, she contends that the jurisprudence uniformly has rejected attempts to rely on similar ordinances to shift tort liability for defects in public sidewalks from a municipality to an abutting landowner. It is undisputed that Ms. Rowe fell on a public sidewalk. It is well settled, as Ms. Kuntz contends, that "the burden for tort liability arising from

a defect in a public sidewalk is generally with the municipality not the adjoining landowner." Morgan v. City of New Orleans, 94-0874, p. 4 (La. App. 4 Cir. 12/15/94), 647 So.2d 1308, 1310-11 (collecting cases). Under this rule, "an abutting property owner is not generally responsible for the repair or maintenance of a public sidewalk, except where the defect in the sidewalk was caused by that landowner." Id.; see also Arata v. Orleans Capitol Stores, 219 La. 1045, 1058-59, 55 So.2d 239, 244 (1951)(noting that abutting property owner is only liable for defects caused by him or her). This rule applies even though the landowner is required by a city ordinance to be responsible for the expense of maintaining the sidewalk. See Monteleon v. City of New Orleans, 617 So.2d 49 (1993); Kuck v. City of New Orleans, 531 So.2d 1142 (La. App. 4 Cir. 1988). The jurisprudence has held that such ordinances do not shift the burden of tort liability from the municipality to the abutting landowner. Id. In Kuck, for instance, this court construed an ordinance containing similar wording to that in Section 146-193, i.e., mandating that the abutting landowner maintain and repair the sidewalk. Refusing to impose liability on the landowner, we reasoned that "similar municipal ordinances have been held to merely create a legal relationship between the city, which owns the sidewalk, and the abutting landowner" and that "tort liability against the

landowner results only from his [or her] actions in creating or causing a defect." Kuck, 531 So.2d 1143-1144. We thus held that the wording of the ordinance did not express "a true legislative intent to shift the burden for tort liability to the adjoining landowner." Id. Based on the same reasoning, we hold that Section 146-193 does not create a statutory duty on the part of an abutting landowner to third parties. Ms. Rowe's reliance on Section 146-193 is thus misplaced. Ms. Rowe's second argument is that the trial court erred in failing to find Ms. Kuntz liable under La. C.C. art. 2315. She contends that Ms. Kuntz should be liable in negligence for creating the hazardous condition, failing to warn of the hazardous condition, and failing to take some reasonable preventative action. Ms. Kuntz counters that the only duty an abutting property owner has is to not create or cause a defect or hazard and that there is no evidence that she created or caused the defect in the sidewalk allegedly presented by the planter. In order for an abutting landowner to be liable for a defect in a sidewalk under a negligence theory, the landowner must have caused or created the defect. Thumfart v. Lombard, 613 So.2d 286, 291 (La. App. 4th Cir. 1993)(collecting cases). Stated otherwise, "the only duty a property owner bears is to refrain from doing anything on or to the sidewalk which

would cause or contribute to the defect." Garner v. Memorial Medical Center, 2003-2015, p. 5 (La. App. 4 Cir. 4/14/04), 872 So.2d 1229, 1232. An abutting property owner has "no duty to notify the city of defects in the sidewalk" or "to warn the plaintiff of defects in the sidewalk." Garner, 2003-2015 at pp. 4-5, 872 So.2d at 1232; George v. Western Auto Supply Co., 527 So.2d 428 (La. App. 4th Cir. 1988)(holding that an abutting landowner has no legal duty to "inform" or "notify" the municipality of a defective condition in its sidewalk). Ms. Kuntz will not bear the burden of proof at trial on the merits. She produced competent evidence in the form of affidavits establishing that she took no action to create or contribute to the alleged defect. She thus succeeded in pointing out to the court an absence of factual support for an essential element to Ms. Rowe's negligence claim under La. C.C.P. art. 966C(2). As a result, the burden of proof shifted to Ms. Rowe on the motion for summary judgment. In opposing the summary judgment, Ms. Rowe relied on her own affidavit in which she attested that the planters located in the front of Ms. Kuntz's property, "were the only planters that were empty or had a wooden border protruding from the planter." Ms. Rowe further relied on the fact that an employee of the Kuntzs hoses the sidewalk daily and that in the fall of

1998 (after the accident at issue occurred) an employee was directed to remove a stray piece of wood from the planter. Ms. Rowe still further relied on affidavits from two City employees who attested that the City is not the owner of the planter, did not install the planter, and is not responsible for maintaining the planter. Under the circumstances presented here, we find there is conflicting evidence regarding who placed the wooden border around the planter and who was responsible for maintaining the planter. We thus find the trial court erred in granting Ms. Kuntz's motion for summary judgment. DECREE For the forgoing reasons, the judgment of the trial court is reversed. REVERSED



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