In June 2008, Tammy Todd and her husband toured a home that was featured in the annual Bossier City Parade of Homes Tour, a collection of open houses showcasing newly constructed homes that was sponsored and promoted by the Home Builders Association of Northwest Louisiana (“HBA”). After viewing a room over the garage, Mrs. Todd allegedly fell at the bottom of a flight of stairs leading back to the garage and injured herself. She and her husband filed suit against the builder, his company, and his insurer as well as the HBA and its insurer (Louisiana is a direct action state). Plaintiffs alleged that the threshold where Mrs. Todd fell was unfinished and that this condition caused her to catch her foot or lose her balance. They further alleged that the builder and the HBA were negligent in allowing her access to an unfinished and unsafe area of the house, failing to warn of the unsafe area, and failing to properly supervise the open house.
The HBA and its insurer filed a peremptory exception of no cause of action asserting that the plaintiffs failed to state a claim against the HBA under Louisiana Civil Code Article 2317.1 (pdf), which governs the liability of the owner or custodian of a thing for damage caused by ruin, vice, or defect in things. The plaintiffs responded by claiming that they had alleged sufficient facts in a “straightforwardArticle 2315 (pdf) action with a duty-risk analysis.” Civil Code Art. 2315 is Louisiana’s general negligence provision. The trial court sustained the exception and dismissed the claims against the HBA without prejudice but allowed the plaintiffs 15 days to replead their claim. They did so, alleging that the HBA had control over each of the houses included in the tour, that the HBA’s advertising informed invitees that it had inspected each house and found that it met HBA standards, and that the HBA, as a sponsor of the Parade of Homes, had a duty to protect invitees from any unreasonable risk of harm from a defective condition and to inspect the premises where plaintiff was injured.
The HBA and its insurer filed a motion for summary judgment arguing that the premises liability claims against them should be dismissed with prejudice because the HBA neither (1) created the alleged dangerous condition nor (2) owned, leased, possessed, or otherwise maintained custody or control of the premises where Mrs. Todd was injured. They also argued that the negligence claim against them should be dismissed. In its opinion, the Louisiana Second Circuit Court of Appeal agreed there was no lease to which the HBA was a party and that the HBA did not have possession or garde of the house. However, it found that the HBA was a sponsor that organized and advertised an event in which it “enticed invitees to view newly constructed houses for a fee.” Because the HBA was a sponsor soliciting patrons to a potentially defective setting, it had a duty to exercise reasonable care for the safety of its patrons. That duty arose under Article 2315. The Second Circuit reversed the trial court’s granting of summary judgment in favor of HBA and its insurer, finding that whether the HBA breached its duty is a question of fact.
Take-Away: A party who does not own, lease, or have custody or control over a premises may nevertheless, in limited circumstances, potentially be responsible for injury at the premises under a negligence cause of action.