Sabrina Scott v. Jennifer Adams and Kenneth Adams III

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2021 CA 0589
SABRINA SCOTT
VERSUS
JENNIFER ADAMS AND KENNETH ADAMS, III
Judgment Rendered: FEB 17 2022
On Appeal from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Trial Court No. 2017- 14333
Honorable August J. Hand, Judge Presiding
Galen M. Hair Attorneys for Plaintiff A
- ppellant
Trent Moss Sabrina Scott
Metairie, LA
and
Kristin M. Lausten
New Orleans, LA
Shannon Howard -Eldridge Attorneys for Defendants -Appellees,
Lauren A. Williams Jennifer Adams and Kenneth Adams, III
Mandeville, LA
and
John M. Robin
Catherine M. Robin
Covington, LA
BEFORE: WHIPPLE, C. J., PENZATO, AND RESTER, JJ.
HESTER, J.
This appeal is from the trial court' s grant of summary judgment in favor of
the lessor/owners of a leased residence dismissing the claims of the lessee for bodily
injury and property damages allegedly caused by exposure to mold in the residence.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
In 2007, Kenneth Adams, III as the residential contactor for his construction
company, built a home at 905 Agnes Street in Mandeville, Louisiana. After the
home was complete, he and his wife, Mrs. Jennifer Adams lived there with their
family until 2015. After they moved out, on November 27, 2015, Mr. Adams entered
into a " Standard Residential Lease Agreement" with Ms. Sabrina Scott for the lease
of the Agnes Street home from December 1, 2015 to December 1, 2016 and
continuing month to month thereafter.
Around July 8, 2017, approximately seventeen months after Ms. Scott moved
into the home, she discovered that the electrical outlets on the backsplash and
cooktop in her kitchen were not working. Ms. Scott looked in the cabinet under the
cooktop and noticed what appeared to be mold growing inside the cabinet. In the
afternoon on Saturday, July 8, 2017, she texted Mr. Adams to let him know that the
electricity to the cooktop went out and when she looked in the cabinet under the
cooktop she discovered " a major mold problem." In the text, she also told Mr.
Adams that she was highly allergic to mold. Mr. Adams responded that he would
be there Monday. On Monday afternoon, Mr. Adams came to the home and cleaned
the surface of the cabinet. He returned to the home the next day to work on the
cooktop and continue cleaning.
On July 17, 2017, Ms. Scott again texted Mr. Adams, " I don' t think this mold
is all gone. It needs to be fully remediated... I can only be there briefly before feeling
sick." Mr. Adams returned to the home to attempt to test for mold. At some point,
2
communication between Ms. Scott and Mr. Adams deteriorated, and the Adamses
were unable to access the home. On July 27, 2017, Ms. Scott hired Mr. Brent
Driskill, a licensed mold remediation contractor, to perform an environmental
assessment of the Agnes Street home. While Mr. Driskill was inspecting the home,
Mrs. Adams came to the home. The next day, Mr. Adams initiated an eviction
proceeding against Ms. Scott, and on August 2, 2017, an order was signed mandating
Ms. Scott to vacate the premises.
Ms. Scott filed suit on September 19, 2017, against Mr. and Mrs. Adams for
wrongful eviction and for damages caused by exposure to mold in the Agnes Street
home. In her petition, Ms. Scott stated the action or inaction of the Adamses caused
the mold, and the mold caused her to suffer substantial negative health effects and
damages to her personal property. The Adamses answered Ms. Scott' s suit and filed
a reconventional demand alleging that Ms. Scott violated the terms of the lease and
caused damage to their property. On July 23, 2018, the Adamses filed a motion for
summary judgment, which was denied except for Ms. Scott' s claims related to the
wrongful eviction.
Thereafter, the parties engaged in extensive discovery involving multiple
experts and depositions. On May 1, 2020, the Adamses filed a second motion for
summary judgment on two grounds. First, the Adamses contended that Ms. Scott' s
suit should be dismissed because the terms of the lease agreement contain waivers
of liability in favor of them as the lessors whereby they are not responsible for the
personal injury and property damages Ms. Scott pursued in her petition. Second, the
Adamses contended that Ms. Scott cannot show general or specific causation
required for toxic mold cases because she does not have medical evidence to show
mold exposure or that mold exposure caused her to suffer any injury or illness.
3
Ms. Scott also filed a motion for summary judgment regarding the Adamses'
reconventional demand for property damages and a partial motion for summary
judgment regarding damages to her property and medical damages.
Ms. Scott responded to the Adamses' motion for summary judgment,
contending that the waiver in the lease was ineffective because under La. R. S. 9: 3221
the Adamses knew or should have known of the defect that caused the mold and
further that the Adamses failed to remedy the mold within a reasonable time after
receiving notice of the defect. Further, Ms. Scott contends that she provided ample
medical evidence to prove that she was exposed to mold and the exposure caused
her to suffer health problems.
The Adamses' motion for summary judgment and Ms. Scott' s motion for
summary judgment and partial motion for summary judgment came before the court
for a hearing on July 8, 2020. After argument, the trial court in oral reasons
determined that the waiver in the lease agreement applied whereby the Adamses are
exempt from liability for Ms. Scott' s injury caused by mold in the home. Therefore,
the trial court granted summary judgment in favor of the Adamses and pointed out
that most of the remaining issues were moot. The trial court also granted summary
judgment in favor of Ms. Scott regarding the Adamses' reconventional demand for
property damages.
On July 30, 2020, the trial court signed a judgment in conformance with its
oral reasons granting the Adamses' motion for summary judgment and dismissing
Ms. Scott' s suit against them with prejudice; denying Ms. Scott' s motion for
summary judgment relating to her claims for contents damages and injuries; and
granting Ms. Scott' s motion for summary judgment related to the Adamses'
reconventional demand for property damages. It is from this judgment that Ms. Scott
appeals, assigning error only to the motion for summary judgment granted in favor
of the Adamses. Ms. Scott contends that the trial court erred in upholding the waiver
11
clause in the lease agreement where the Adamses, as the builders of the home, knew
or should have known of defects in the home; where the Adamses failed to remedy
the defects causing the formation of mold; and where the Adamses' negligence led
to substantial physical injuries to Ms. Scott and damage to her personal property.
LAW AND ANALYSIS
A motion for summary judgment is a procedural device used to avoid a full-
scale trial when there is no genuine issue of material fact. Jones v. Anderson, 2016-
1361 ( La. App. 1st Cir. 6/ 29/ 17), 224 So. 3d 413, 417. After an opportunity for
adequate discovery, a motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law. La. Code
Civ. P. art. 966( A)(3). A " genuine" issue is a triable issue, which means that an
issue is genuine if reasonable persons could disagree; if on the state of the evidence,
reasonable persons could reach only one conclusion, there is no need for a trial on
that issue. A fact is " material" when its existence or nonexistence may be essential
to plaintiff' s cause of action under the applicable theory of recovery. Kasem v.
State Farm Fire & Cas. Co., 2016- 0217 ( La. App. 1st Cir. 2/ 10/ 17), 212 So. 3d 6,
13. The only documents that may be filed in support of or in opposition to the motion
are pleadings, memoranda, affidavits, depositions, answers to interrogatories,
certified medical records, written stipulations, and admissions. La. Code Civ. P. art.
966( A)(4).
The burden of proof rests on the mover. Nevertheless, if the mover will not
bear the burden of proof at trial on the issue that is before the court on the motion
for summary judgment, the mover' s burden on the motion does not require him to
negate all essential elements of the adverse party' s claim, action, or defense, but
rather to point out to the court the absence of factual support for one or more
elements essential to the adverse party' s claim, action, or defense. The burden is
5
then on the adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not entitled to
judgment as a matter of law. La. Code Civ. P. art. 966( D)( 1).
Appellate courts review evidence de novo under the same criteria that govern
the trial court' s determination of whether summary judgment is appropriate.
Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017- 0895 ( La.
App. 1st Cir. 12/ 21/ 17), 240 So. 3d 932, 936, writ denied, 2018- 0145 ( La. 3/ 23/ 18),
238 So. 3d 963. Thus, appellate courts ask the same questions: whether there is any
genuine issue of material fact and whether the mover is entitled to judgment as a
matter of law. Crosstex Energy Services, LP, 240 So. 3d at 936. Because it is the
applicable substantive law that determines materiality, whether a particular issue in
dispute is material can be seen only in light of the substantive law applicable to the
case. Jones, 224 So. 3d at 417.
The Lease Agreement
Under Louisiana law, the owner/lessor of a building is generally liable for the
condition of the leased premises. La. Civ. Code art. 2696. However, the Louisiana
legislature enacted an exception to this rule, which enables the lessee to assume
responsibility for the condition of the premises in the lease contract. See La. R. S.
9: 3221; see also Stuckey v. Riverstone Residential SC, LP, 2008- 1770 ( La. App.
1st Cir. 8/ 5/ 09), 21 So. 3d 970, 974, writ denied, 2009- 2328 ( La. 1/ 8/ 10), 24 So. 3d
873. Louisiana Revised Statute 9: 3221 provides, " 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." Accordingly, La. R.S. 9: 3221 establishes three factors by
which a lessee who has assumed responsibility for the condition of the leased
2
premises may nevertheless assert liability for injury on the owner of the premises: if
the owner ( 1) knew of the defect that caused the injury, ( 2) should have known of
the defect that caused the injury, or ( 3) received notice of the defect and failed to
remedy it within a reasonable time. Lamb v. Ashford Place Apartments, L.L.C.,
914 F. 3d 9409 945 ( 5th Cir. 2019).
In their motion for summary judgment, the Adamses contend that they are not
liable for the injuries to Ms. Scott caused by alleged defects in the premises because
Ms. Scott assumed responsibility for the leased premises and there is no evidence
that the Adamses " knew or should have known of the defect or had received notice
thereof and failed to remedy it within a reasonable time." The Adamses filed several
documents in support of their position including, the deposition of Ms. Scott, the
deposition of Mr. Adams, the affidavit of Mr. Adams, and the affidavit of Mrs.
Adams.
Attached to Mr. Adams' s affidavit is the lease agreement signed by Ms. Scott
and Mr. Adams, which provides the following relevant provisions:
NON -LIABILITY OF LANDLORD: Tenant understands and agrees
that Landlord and Landlord' s agents shall not be liable for injury or
damage to person or property of Tenant, his family, guests, employees
or invitees, occurring in, on or about the leased premises, or occurring
anywhere in or on the apartment building or area in which the leased
premises are located, or in or upon the grounds in which the apartment
building or house is located, or in any other building or structure on said
grounds, however caused or arising except by the direct negligence of
Landlord, or Landlord' s agents or employees, and agrees to defend,
indemnify and hold Landlord and Landlord' s agents harmless from any
and all claims, suits or damages resulting therefrom.
LEAD-BASED PAINT, ASBESTOS, RADON, MOLD: Tenant is
aware that the premises may contain lead-based paint, asbestos, mold
or other toxins which may cause serious injury or death if consumed or
ingested into the human body, and Tenant acknowledges that the
Protect Your Family from Lead in Your Home" pamphlet has been
called to their attention with respect to notice and information of lead
based paint. Having knowledge of these facts, Tenant agrees to
maintain the premises in a reasonably safe condition, to report to
Landlord any condition which may lead to damage or injury because of
lead, asbestos, or other toxins, and Tenant further agrees to assume the
use and occupancy of the herein leased premises at his own risk and
hereby releases Landlord, his agents and/ or representatives from any
7
claims relating to or sustained as a consequence thereof, and further
agrees to hold harmless, defend and indemnify Landlord, his agents
and/or representatives from any claims made by Tenant, residents of
his household or others using the premises with the consent and
permission of Tenant.
In the lease agreement, Ms. Scott agreed that she found " the Premises in
acceptable condition" and that the landlord " shall not be liable for injury or damages
to the person or property of Tenant... occurring in, on or about the leased premises."
Specific to mold, Ms. Scott agreed " to assume the use and occupancy of the ... leased
premises at [ her] own risk and hereby releases Landlord, his agents and/ or
representatives from any claims relating to or sustained as a consequence thereof."
In his deposition and affidavit, Mr. Adams pointed out that the text he received
from Ms. Scott on July 8, 2017, was the first time Ms. Scott mentioned mold in the
Agnes Street home, and the only area she complained about was the cabinet under
the cooktop. He attested that he immediately advised Ms. Scott that he would be
there on July 10, 2017, to inspect the premises, and that he went to the home, on that
day, and inspected and cleaned the area where Ms. Scott said there was mold. Mr.
Adams said that the spots in the cabinet wiped off pretty easily.
Mr. Adams said Ms. Scott texted him again on July 17, 2017, advising him
that she did not think the mold was gone, and he responded that he would be there
on July 19, 2017, to test the home. Mr. Adams testified that Ms. Scott did not
provide a time for him to test the home on July 19, 2017, and he performed the
testing on July 20, 2017. According to Mr. Adams, he filed a Petition for Eviction
on July 27, 2017, and an order of eviction was issued on August 2, 2017. He said
that that he instituted the eviction because Ms. Scott was not letting him or his wife
into the home.
Mr. Adams stated that during the years he and his family lived in the Agnes
Street home he never experienced any issues with mold. According to Mr. Adams,
he went to the home maybe a dozen times when Ms. Scott lived there, and prior to
t
July 10, 2017, the last time he went to the Agnes Street home was " maybe six months
before" and he had no recollection of the last time he looked in the cabinet under the
cooktop.
In her deposition, Mrs. Adams said that January 2017 was the first contact she
had with Ms. Scott when she went to the home for a termite inspection, and that was
the last time she was in the home until July 2017. She also stated that she and Mr.
Adams did not have mold issues when they lived in the home. Mrs. Adams said she
attempted to communicate with Ms. Scott so that she could further clean the home,
but Ms. Scott said she was unavailable and would not allow Mrs. Adams access to
the home.
During her deposition, Ms. Scott said that she discovered the mold when she
looked in the cabinet under the cooktop because the cooktop would not light. Ms.
Scott said she was experiencing symptoms three to four months before the July 8,
2017 text, but agreed that the mold she found in the cabinet under on July 8, 2017,
was the first mold she found in the home. Ms. Scott corroborated Mr. Adams' s
statement that the July 8, 2017 text she sent to Mr. Adams was the first time she
mentioned mold to him and that Mr. Adams came to the home two days later to clean
the surface with a mold cleaner. She also agreed that Mr. Adams returned to the
home to clean and attempted to test for mold.
The evidence submitted by the Adamses in support of their motion for
summary judgment demonstrated that they did not have issues with mold when they
lived in the Agnes Street home; Ms. Scott assumed responsibility for the condition
of the home in the lease agreement; the Adamses were rarely in the home while Ms.
Scott lived there; Ms. Scott' s July 8, 2017 text message sent over seventeen months
after moving in was the first time Ms. Scott mentioned mold to the Adamses; the
Adamses promptly responded to her complaints by cleaning the area; and promptly
responded again until they were not given access to the home. We find the evidence
E
submitted by the Adamses pointed out to the court the absence of factual support for
an essential element to Ms. Scott' s claim that the waiver in the lease agreement was
ineffective. Specifically, the Adamses pointed out that they did not have actual or
constructive knowledge about the mold or any defect that would cause mold and
responded within a reasonable time when notified about the mold. Accordingly, the
burden shifted to Ms. Scott to produce factual support sufficient to establish the
existence of a genuine issue of material fact as to whether the Adamses knew or
should have known about the mold or failed to remedy the defect within a reasonable
time.
In her first assignment of error, Ms. Scott contends that the Adamses built the
Agnes Street home and therefore they knew or should have known of the defects in
the home that caused mold to grow. In support of her position, Ms. Scott included
the affidavit of Mr. Driskill, the mold specialist who assessed the Agnes Street home.
In his affidavit, Mr. Driskill stated that he found mold in the home and determined
that negative air pressure was causing excessive air infiltration, which caused mold
to grow. He determined that two roof mounted electric ventilators and an
insufficient return air design in the upstairs of the home were the source of the
negative air pressure.
He opined that a property owner, especially one that built the
home, would have constructive knowledge of this condition. Ms. Scott also
introduced the affidavit of Randy Galliano, who has an HVAC certification and a
Louisiana HVAC Contractors license. Mr. Galliano stated that in his opinion, the
HVAC system was improperly installed or repaired and the Adamses, as the agents
of the installer and/ or repairperson, should have known that the installation was
faulty.
As pointed out by this court in Stuckey, La. R.S. 9: 3221 was designed to
relieve the owner of some of the burdens imposed upon him by law in cases where
he had given dominion or control of his premises to a tenant under a lease, and the
10
phrase " should have known" should not be construed to impose expansive burdens
upon the owner lessor, and most specifically should not include any duty to inspect
the premises. Stuckey, 21 So. 3d at 978. Considering the purpose of La. R.S. 9: 3221,
the conclusions by Mr. Driskill and Mr. Galliano that since the Adamses built the
home, they should have known of these defects fall short of the factual support
required to establish the existence of a genuine issue of fact when there was no
evidence of mold for the eight years that the Adamses lived in the home, and Ms.
Scott did not discover evidence of mold until more than seventeen months after
moving in the home.
In the alternative, Ms. Scott contends that even if the Adamses were
previously unaware of the defects that caused the humid conditions in the home, they
were aware of the defects in the summer of 2016 when Ms. Scott complained to Mr.
Adams that the air conditioner was not cooling properly. At the time, Ms. Scott
made Mr. Adams aware of problems she was having with her air conditioner, and
Mr. Adams sent Robert Arce out to repair the air conditioner. She contends that Mr.
Arce did not properly repair the air conditioner, causing mold to grow, and that Mr.
Arce was an agent of Mr. Adams whose knowledge was imputed to Mr. Adams.
Therefore, Mr. Adams knew or should have known that the air conditioner was not
properly repaired. We find no merit to this argument. Ms. Scott presented
insufficient evidence directly linking the presence of mold to her prior complaint
regarding the air conditioner. ( See Montgomery and Stuckey, both summary
judgment cases considering La. R.S. 9: 3221 where this court determined that prior
complaints of water leaks did not create a genuine issue of fact regarding whether
the landlord knew or should have known about mold when there was no direct
evidence linking the presence of mold to prior reports of water leaks. Montgomery
v. Garry Lewis Properties, 2017- 1720 ( La. App. 1st Cir. 8/ 10/ 18), 256 So. 3d 391,
398, writ denied, 2018- 1585 ( La. 12/ 17/ 18), 258 So. 3d 598, cert. denied, U.S.
11
139 S. Ct. 2673, 204 L. Ed. 2d 1077; Stuckey, 21 So. 3d at 976.) While Ms.
Scott complained about the air conditioner to Mr. Adams, she never suggested that
the problems she was having with the air conditioner were causing mold. Ms. Scott' s
prior complaints about the air conditioner a year earlier that were promptly addressed
by Mr. Adams are insufficient to impose actual or constructive knowledge on the
Adamses that there was a defect causing mold in the home, especially since Ms.
Scott did not further complain about the air conditioner to the Adamses after it was
repaired by Mr. Arce.
At trial, Ms. Scott would have the burden of proving that the Adamses should
have known about a defect in the home that caused mold to grow or failed to remedy
the problem upon notice. Ms. Scott offered no specific facts to contradict the
evidence offered by the Adamses that they neither knew or should have known about
mold in the home or any defect in the home that would cause mold to grow prior to
receiving Ms. Scott' s July 8, 2017 text. At best, she proved that it is possible that
the Adamses should have known of the potential for mold to grow. See Stuckey, 21
So. 3d at 979. In the lease agreement, Ms. Scott assumed responsibility for the
condition of the Agnes Street home and waived her right to bring claims for injury
caused by defects in the home against the Adamses. The summary judgment
evidence revealed that the exceptions in La. R.S. 9: 3221, which would allow Ms.
Scott to assert liability to the Adamses, are not applicable herein. Accordingly, no
genuine issue of fact remains and the trial court properly granted summary judgment
in favor of the Adamses.
CONCLUSION
For the foregoing reason, the judgment of the trial court is affirmed. All costs
of the appeal are assessed to plaintiff-appellant, Ms. Sabrina Scott.
AFFIRMED.
12