Lamb v. Ashford Place Apartments L L C et al

Filing 32

MEMORANDUM RULING re 22 MOTION for Summary Judgment filed by Heather Bamburg, Ashford Place Apartments L L C, and M R C Development L L C. Signed by Judge Robert G James on 2/22/2018. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
RHONDA F. LAMB

CIVIL ACTION NO. 17-0207

VERSUS

JUDGE ROBERT G. JAMES

ASHFORD PLACE
APARTMENTS, LLC, ET AL.

MAG. JUDGE KAREN L. HAYES

RULING
Before the Court is a Motion for Summary Judgment [Doc. No. 22] filed by Defendants
Ashford Place Apartments, LLC, Heather Bamburg, and MRC Development, LLC. Plaintiff Rhonda
F. Lamb opposes the motion. [Doc. No. 26]. For reasons assigned below, the Motion for Summary
Judgment is GRANTED.
I.

FACTS AND PROCEDURAL HISTORY
On January 29, 2015, Plaintiff Rhonda F. Lamb and Defendant Ashford Place Apartments,

LLC (“Ashford”), acting through its property manager, MRC Development, LLC, executed an
apartment lease entitled, “Residential Lease Agreement” (“the Lease”). [Doc. No. 22-3]. The Lease
remained effective through the dates pertinent to this proceeding.
On either January 5 or 6, 2016, Plaintiff informed Ashford’s management that she smelled
a burning odor1 emanating from her apartment’s heating unit. She then contacted the Ouachita
Parish Fire Department, which investigated and determined that the odor was likely dust burning off
of the heating unit. Ashford’s head of maintenance, Bruce Robinson, checked the unit and agreed
that the odor was dust burning off of the heating coils. [Doc. No. 22-4, p. 3].
1

The parties appear to use the terms “odor,” “smoke,” and “fumes” interchangeably.

Thereafter, on either January 5 or 6, 2016, Plaintiff again reported a burning odor. Ashford
contacted Delancey Service Company, which inspected the heating unit and recommended replacing
the motor. Robinson replaced the motor with a new motor on January 6, 2016. [Doc. Nos. 22-4, pp.
3-5; 26, p. 4]. After he replaced the motor, according to Defendants, the heating unit was working
properly. [Doc. No. 22-4, p. 3].
According to Ashford’s property manager, Defendant Heather Bamburg, Plaintiff called later
that evening to again report an odor. [Doc. No. 22-4, p. 3]. Bamburg states that Robinson
investigated, did not smell anything, and could not find anything wrong with the heating unit. Id.
After Robinson checked it, Plaintiff started the heating unit and claims that she “was
suddenly overcome by smoke fumes . . . .” [Doc. No. 26, p. 4]. Plaintiff then called Ashford’s
management again to report a burning odor. [Doc. No. 22-4, p. 3]. Plaintiff also called the Ouachita
Parish Fire Department. [Doc. No. 26, p. 4]. Bamburg maintains that she and Robinson went to
inspect the apartment after receiving Plaintiff’s call. Id.
The Fire Department arrived and treated Plaintiff. [Doc. No. 26-5, p. 15]. The Fire
Department entered the apartment and found light smoke. Id. The Fire Department recounted that
Ashford “maintenance persons reported [that the] furnace fan motor overheated.” Id. It also
reported that American Medical Response transported Plaintiff to the hospital. Id. at 2. According
to Bamburg, Plaintiff stayed in a hotel that night. [Doc. No. 22-4, p. 3].
On January 7, 2016, Robinson replaced the motor a second time. [Doc. No. 22-4, p. 1].
Plaintiff states that “[t]here were no difficulties with the operation of the heater unit after that
substitution.” [Doc. No. 26, p. 5]. Bamburg states that she called Klean King the same day to clean
Plaintiff’s apartment’s ducts, but Klean King could not arrive until January 8, 2016. Bamburg also
2

maintains that Plaintiff stayed in the hotel a second night on January 7, 2016. [Doc. No. 22-4, p.
3].
Klean King cleaned the ducts on January 8, 2016. Id. at 7. Bamburg states that she then
notified Plaintiff that her apartment was ready for Plaintiff to return. Id. at 3.
Plaintiff filed suit in state court on November 18, 2016, claiming that she suffers “from
hyperactive airway disease as a result of the inhalation of smoke and nauseous fumes emitting from
the defective air conditioning/hearing unit . . . .” [Doc. No. 1-1]. Plaintiff alleges, specifically, that
her “injuries were not the result of the first reported incident of smoke smell which was addressed
with a replacement motor, but after Ashford Place maintenance employees replaced that blower
motor. That replacement motor was either installed improperly, or was the wrong part . . . .” [Doc.
No. 26, p. 6].
Defendants removed the proceeding to this Court on January 27, 2017. [Doc. No. 1].
Defendants filed the instant Motion for Summary Judgment on January 11, 2018. [Doc. No. 22].
Plaintiff responded to Defendants’ motion on January 22, 2018 [Doc. No. 26], and Defendants
replied on January 31, 2018 [Doc. No. 31].
II.

LAW AND ANALYSIS
A.

Standard of Review

Summary judgment is appropriate when the evidence before a court shows “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A fact is “material” if proof of its existence or nonexistence would affect the
outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that a
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reasonable fact finder could render a verdict for the nonmoving party. Id.
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). “The moving party may
meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that
the record contains no support for the non-moving party’s claim.” Stahl v. Novartis Pharm. Corp.,
283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is unable to identify anything in
the record to support its claim, summary judgment is appropriate. Id. “The court need consider only
the cited materials, but it may consider other materials in the record.” FED. R. CIV. P. 56(c)(3).2
In evaluating a motion for summary judgment, courts “may not make credibility
determinations or weigh the evidence” and “must resolve all ambiguities and draw all permissible
inferences in favor of the non-moving party.” Total E & P USA Inc. v. Kerr–McGee Oil and Gas
Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted). While courts will “resolve factual
controversies in favor of the nonmoving party,” an actual controversy exists only “when both parties
have submitted evidence of contradictory facts.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). To rebut a properly supported motion for summary judgment, the opposing party must
show, with “significant probative evidence,” that a genuine issue of material fact exists. Hamilton
v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (emphasis added). “‘If the evidence is
2

However, Rule 56 does not require a court to “sift through the record in search of
evidence to support a party’s opposition to summary judgment.” Willis v. Cleco Corp., 749 F.3d
314, 317 (5th Cir. 2014) (quoted source omitted).
4

merely colorable, or is not significantly probative,’ summary judgment is appropriate.” Cutting
Underwater Tech. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting
Anderson, 477 U.S. at 248).
Relatedly, there can be no genuine dispute as to a material fact when a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322-23. This is
true “since a complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. at 323.
B.

Assumption of Responsibility By Lessee

Citing LA. REV. STAT. 9:3221, Defendants argue that they are not liable for any alleged defect
in Plaintiff’s apartment because, under the terms of the Lease, Plaintiff assumed full responsibility
and liability for the condition of the apartment, improvements, equipment, and appurtenances. [Doc.
No. 22, p. 2]. Section 3221 provides:
Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of
premises leased under a contract whereby the lessee assumes responsibility for their
condition is not liable 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.
LA. REV. STAT. 9:3221.
Here, the Lease provides in pertinent part:
30. INDEMNIFICATION. Resident assumes full responsibility and liability for the
Leased Premises, and all improvements, equipment and appurtenances thereto. The
responsibility and liability assumed hereunder shall include, without limitation, all
liability assumable by a Resident under Louisiana Revised Statutes 9:3633. To the
maximum extent allowed under applicable law, this assumption of responsibility and
liability shall be fully co-extensive with the legal responsibilities of the Landlord
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(both as Landlord and owner) and Management to all persons. Resident specifically
agrees to defend, protect and indemnify Landlord and Management, and hold
Landlord and Management harmless, against any and all responsibility, liability,
loss, expenses, and other costs of whatever kind arising from all suits, claims,
demands and actions asserted by any person (including without limitation Resident
or its agents, employees or invitees) and arising directly or indirectly out of any
occurrence on or about the Leased Premises or out of any of the Resident’s uses on
or about the Leased Premises, whether by the Landlord, Management, the Resident
or others. The obligations of the Resident to the Landlord and Management under
this section shall not depend upon the existence of fault or negligence but shall apply
whether or not Resident, Management, or Landlord is at fault and shall include all
legal liabilities arising without fault. Resident shall further indemnify Landlord and
Management against all liability, expenses and losses incurred by Landlord and
Management as a result of (a) failure by the Resident to perform any covenant
required to be performed by Resident hereunder; (b) any accident, injury or damage
occurring on the Leased Premises resulting from any reason whatsoever, including
without limitation, the condition, maintenance or operation thereof; or (c) Resident’s
failure to comply with any requirements of any government authority. “Expenses”
shall include court costs, costs of defense and expert’s and attorney’s fees.
[Doc. No. 22-3, p. 6].
The Court finds that this provision clearly and unambiguously expresses the parties’
intent and that, consequently, Plaintiff assumed responsibility for the leased premises.3 Thus,
under LA. REV. STAT. 9:3221,4 Defendants are not liable for the alleged defect (or Plaintiff’s

3

See Briggs v. 2901 I-10, L.L.C., 2014-0386 (La. App. 4 Cir. 9/25/14), 150 So. 3d 930,
932 (finding that lessee assumed responsibility by agreeing to the following: “Lessee hereby
assumes responsibility for the condition of the Leased premises and Lessor shall not be liable to
Lessee or anyone who derives his right to be thereon from the Lessee, for any injury, death or
damages caused by any defect in the Leased Premises.”); Altvater v. LaBranche Properties, Inc.,
2004-1484 (La. App. 4 Cir. 4/20/05), 901 So. 2d 584, 586; Dufrene v. Kaiser Aluminum & Chem.
Corp., 572 So. 2d 771, 773 (La. Ct. App. 1990); Meyers v. Drewes, 196 So. 2d 607, 611 (La. Ct.
App. 1967).
4

Plaintiff argues that LA. CIV. CODE art. 2699 controls. [Doc. No. 26, pp. 7-8].
However, LA. REV. STAT. 9:3221 applies “[n]otwithstanding the provisions of Louisiana Civil
Code Article 2699 . . . .” Moreover, “La. C.C. art. 2699 does not supersede the provisions of La.
R.S. 9:3221 . . . .” Stuckey v. Riverstone Residential SC, LP, 2008-1770 (La. App. 1 Cir. 8/5/09),
21 So. 3d 970, 974. “Louisiana Revised Statute[] 9:3221 is . . . expressly recognized as not
subject to the provisions of La. C.C. art. 2699.” Id.
6

alleged resultant injuries) unless Defendants “knew or should have known of the defect or had
received notice thereof and failed to remedy it within a reasonable time.”
Plaintiff does not identify the defect that Defendants allegedly knew of. Plaintiff alleges
that the replacement motor was either installed improperly or was the wrong part.5 [Doc. No. 26,
p. 10 (emphasis added)]. Without specifying which alleged defect caused harm (or providing
evidence of a specific defect), there is no genuine dispute that Defendants knew of a specific
defect before Plaintiff suffered her alleged injuries.6
There is also no genuine dispute concerning whether Defendants, within a reasonable
time, failed to remedy a defect of which Plaintiff provided notice.7 Of emphasis, Plaintiff alleges
that her “injuries were not the result of the first reported incident of smoke smell which was
addressed with a replacement motor, but after Ashford Place maintenance employees replaced
that blower motor.” [Doc. No. 26, p. 6]. According to Bamburg, Robinson replaced the first
motor with a new motor on January 6, 2016, and reported that the heating unit was working
properly. [Doc. No. 22-4, p. 3-5]. Plaintiff did not provide notice of the odor from the replaced
motor until the evening of January 6, 2016. [Doc. No. 22-4, p. 3].

Plaintiff also argues that LA. CIV. CODE art. 2004 applies. [Doc. No. 26, p. 9]. However,
like Article 2699, Article 2004 does “not supersede La. R.S. 9:3221.” Stuckey, 21 So. 3d at 975.
5

Plaintiff even writes that “[h]ow the fire/smoke event occurred” is a “significant
question of material fact . . . .” [Doc. No. 26]. While this is certainly a question of fact, it does
not create a genuine dispute of material fact.
6

Moreover, Bamburg avers that she “had no prior knowledge concerning the alleged
issues with the air heat and air unit reported by [Plaintiff].” [Doc. No. 22-4, p. 1].
7

Aside from one cursory remark that Defendants “failed to remedy the conditions
timely,” Plaintiff makes no argument regarding untimely remediation. [See Doc. No. 26, p. 19].
7

Following Plaintiff’s first report of fumes, Robinson investigated, did not smell anything,
and could not find anything wrong with the heating unit. [Doc. No. 22-4, p. 3]. As Plaintiff
offers no evidence to the contrary, she does not genuinely dispute that, at this point, there was no
defect—of which Defendants received notice—to remedy.
Following Plaintiff’s second report of smoke fumes later that evening, Bamburg and
Robinson went to inspect the apartment. Id. Plaintiff, however, suffered her alleged injuries
before Bamburg and Robinson arrived. [Doc. No. 22-4, p. 3]. In that respect, Plaintiff offers no
evidence that Bamburg and Robinson had a reasonable opportunity to remedy the defect, of
which they received notice, before Plaintiff suffered injury.8 See Meyers, 196 So. 2d at 611
(“[T]he lessee has no claim for any damage suffered by him by reason of any vices or defects in
the leased property, or the consequences thereof, unless such damage is suffered After [sic] the
lessor has had notice of such vices or defects and has failed to take action toward remedying
them.”) (emphasis added).9
Finally, Plaintiff suggests that Defendants should have known of the defect:10 “Since

8

Neither party cites any evidence specifying how long it took Bamburg and Robinson to

respond.
9

The Court reiterates that Robinson replaced the motor a second time on January 7,
2016. [Doc. No. 22-4, p. 1]. Plaintiff states that “[t]here were no difficulties with the operation
of the heater unit after that substitution.” [Doc. No. 26, p. 5]. Klean King also cleaned the ducts
on January 8, 2016. [Doc. No. 22-4, p. 7]. These remediation efforts, however, are largely
irrelevant considering that Plaintiff’s alleged injuries arose the day before. See, e.g. Stuckey, 21
So. 3d at 979 (affirming summary judgment because the “defendants did not know and did not
have reason to know of the alleged mold until their receipt of [the plaintiff’s] letter . . . and that
upon receiving such notice, the defendants sought to investigate and remedy the claimed
condition within a reasonable time.”).
10

Once more, Plaintiff fails to identify a particular defect.
8

[Defendants] performed the work in house, they were certainly aware of their own actions . . . .”
[Doc. No. 26, p. 10]. Plaintiff, however, provides no evidence11 of when, how, or why
Defendants should have known, before she reported fumes,12 that Robinson installed the first
replacement motor incorrectly13 or that Robinson installed either the wrong motor or a defective
motor.14

11

Citing Ford v. Bienvenu, 95-1675 (La. App. 4 Cir. 4/24/96), 673 So. 2d 1198, and
Wallace v. Helmer Directional Drilling Inc., 93–901 (La.App. 3 Cir. 7/13/94), 641 So. 2d 624,
Plaintiff suggests that Defendants bear the burden of proving that they should not have known of
a defect. [Doc. No. 26, p. 12]. Ford, for example, held that the defendant’s affidavit did not
“negate the possibility that ‘he should have known’ of the alleged defect.” Ford, 673 So. 2d at
1200. However, as explained in Graubarth v. French Mkt. Corp., 2007-0416 (La. App. 4 Cir.
10/24/07), 970 So. 2d 660, 667, Ford and Wallace were decided prior to the amendment of LA.
CODE CIV. PROC. art. 966 (“Motion for summary judgment; procedure”). “Prior to the
amendment, summary judgments were not favored. With the amendment, summary judgments
are favored and the burden of proof shifts to [plaintiff] once [defendants] negate[] a necessary
element of [the plaintiff’s] claim. Graubarth, 970 So. 2d at 667. Now, the burden of
establishing that a defendant should have known of a defect definitively rests with plaintiffs. See
Briggs, 150 So. 3d at 933 (observing that the plaintiff carries the burden of proof).
12

After Plaintiff reported fumes, Defendants were on notice of a possible defect.
Consequently, whether Defendants should have known of a defect at that point is irrelevant.
13

Of note, Plaintiff states that “[t]here were no difficulties with the operation of the heater
unit after” Robinson—the same individual Plaintiff suggests negligently installed the first
replacement motor—replaced the motor a second time. [Doc. No. 26, p. 5].
14

To reiterate, there is no evidence that Bamburg and Robinson had a reasonable
opportunity, before Plaintiff allegedly suffered injury, to inspect and discover a defect after
Plaintiff notified them of a problem. See Chau v. Takee Outee of Bourbon, Inc., 97-1166 (La.
App. 4 Cir. 2/11/98), 707 So. 2d 495, 498 (“In view of the statute’s purpose of relieving owner
lessors of some liability when the lease shifts responsibility for the premises to the lessee, the
phrase ‘should have known’ in the statute should not be construed to impose expansive burdens
upon the owner lessor.”); see also Stuckey, 21 So. 3d at 979 (holding that evidence suggesting
that the defendants should have known of the potential for the development of a defect (mold)
“does not rise to evidence creating a genuine issue of material fact on the issue of whether the
defendants should have known” of the defect); Briggs, 150 So. 3d at 933 (affirming summary
judgment against plaintiff because “[s]he has offered no factual support for her contention that
the property owner should have known of the installation defect . . . .”); Pillow v. Roymar Ltd.
9

III.

CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment [Doc. No. 22] is

GRANTED, and Plaintiff’s claims are DISMISSED WITH PREJUDICE.
MONROE, LOUISIANA, this 22nd day of February, 2018.

P’ship, 15-730 (La. App. 5 Cir. 6/30/16), 197 So. 3d 348 (finding that evidence that general
partner only “look[ed] around” the property rather than inspecting it did not create “a genuine
issue of material fact on the issue of whether [defendant] should have known of the presence of
the loose handrail, the defect . . . .”);Graubarth, 970 So. 2d at 667; Leonard v. Am. Oil Co., No.
CIV. A. 90-1321, 1991 WL 213919, at *2 (E.D. La. Oct. 15, 1991); Nelson v. Torian, 96-176
(La. App. 3 Cir. 6/26/96), 676 So. 2d 773, 778.
10