
    Curtis J. PAUL, et ux., Plaintiffs-Appellants, v. ROYAL INSURANCE CO., et al., Defendants-Appellees.
    No. 93-297.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 1993.
    Writ Denied Feb. 25, 1994.
    
      Donald R. Wilson, Jena, Steven Patrick Mansour, Alexandria, for Curtis J. Paul et ux.
    Elizabeth Erny Foote, Alexandria, for Royal Ins. Co., et al.
    David A. Hughes, Alexandria, for Virginia Jackson.
    Lyle Parker, Alexandria, for Liberty Mut. Ins. Co.
    Before GUIDRY, KNOLL and SAUNDERS, JJ.
   KNOLL, Judge.

This strict liability action involves the fall of a United Parcel Service (UPS) delivery man on the front steps of a commercial building. At the time of the fall, a contractor had detached the steps so that vinyl siding could be installed on the exterior of the building.

Curtis J. Paul, the delivery man, and his wife, Janet T. Paul, brought suit only against the owner of the building, Virginia L. Jackson, and her general liability insurer, Royal Insurance Company, for personal injuries Paul received. At the end of the presentation of Paul’s evidence, the trial court granted the motion of Jackson and Royal for directed verdict, and removed the case from the jury.

The Pauls contend that the trial court erred in: (1) its misapplication of Louisiana’s laws on strict liability, particularly the provisions of LSA-C.C. Art. 2322, dealing with “damage caused by ruin of a building”; (2) directing verdict for Royal at the close of plaintiffs’ case; and, (3) failing to direct verdict in favor of plaintiffs on the issue of liability. We affirm.

FACTS

The facts of this case are not disputed and can be succinctly stated. Jackson was the owner of the property where Paul fell. At the time of the accident, Steven LaCaze, a contractor not named as a defendant in this action, had detached the steps to facilitate the installation of vinyl siding. There were no signs, flagging or similar warning devices in place to alert that the steps were not attached to the building. As Paul carried packages to the office supply business, he did not notice that the outside, wooden steps were detached, and he fell forward onto the porch when he ascended. Jackson, the property owner, had not detached the steps and she did not control the siding installation.

STRICT LIABILITY

The Pauls contend that the trial court incorrectly determined that the laws of strict liability were inapplicable to the facts presented. They argue that the trial court misapplied the law of strict liability as enunciated in LSA-C.C. Art. 2822 and 2817.

LSA-C.C. Art. 2322 makes the owner of a building strictly liable for the damage suffered by any person who is injured, while rightfully inside or outside the building, in an accident occasioned by the owner’s neglect to repair the building or from a vice (defect) in its original construction. Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.1981).

In Temple v. General Insurance Co. of America, 306 So.2d 915 (La.App. 1st Cir.1974), writ denied, 310 So.2d 643 (La.1975), the First Circuit stated at page 916:

“This article [Art. 2322] obviates the necessity of an injured party having to prove ‘fault’ upon the part of an ‘owner’ or those for whom said owner is answerable. However, the strict liability under Article 2322 is not purely absolute because it arises subject to limiting predicatory language which establishes an owner’s responsibility only when the ‘ruin’ occasioning the damages is caused by ‘neglect to repair it’ or by a ‘vice in its original construction.’”

In the case sub judice, we find that the trial court was correct in not finding Jackson and Royal strictly liable under Art. 2322. Louisiana jurisprudence is firmly established that Art. 2322 does not apply to the repair/construction of a building. A building under repair is not a ruin. Temple, supra; see also, Green v. Popeye’s Inc., 619 So.2d 69 (La.App. 3rd Cir.1993) and Herron v. Lincoln Property Co., 525 So.2d 1189 (La.App. 5th Cir.1988). There is no evidence that the wooden steps in the present case had a defect in its original construction or that the owner had neglected to repair the structure.

The Pauls next contend that the trial court erred in not finding strict liability under LSA-C.C. Art. 2317 which provides, in pertinent part:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

A plaintiff who attempts to impose liability under Art. 2317 on the custodian of a defective thing must prove: (1) the thing had a vice or defect; (2) the defect presented an unreasonable risk of harm to others; (3) the thing was in defendant’s custody; and, (4) damage was caused by the defect. Epps v. Society of The Holy Family, 583 So.2d 1216 (La.App. 4th Cir.1991). If any one of these elements is missing, the plaintiff’s strict liability claim falls.

A defect for the purposes of Art. 2317 is a flaw or condition of relative permanence inherent in the thing as one of its qualities. Boudreaux v. Farmer, 604 So.2d 641 (La.App. 1st Cir.1992), writs denied, 605 So.2d 1373, 1374 (La.1992). A temporary condition may constitute a hazard, but it does not constitute a defect as contemplated by Art. 2317. Id.

After carefully reviewing the record, we find no error in the trial court’s determination that the Pauls failed to prove liability under Art. 2317. Although the trial court’s discussion went off on a tangent on whether the detached steps were in or on the premises, a determination we do not find necessary to reach, we nonetheless conclude that the Pauls’ evidence preponderates that the detachment of the steps was a temporary condition and did not constitute a defect under Art. 2317 and its interpretative jurisprudence. Boudreaux, supra.

The law relative to directed verdicts is stated in LSA-C.C.P. Art. 1810 which provides:

“A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

Likewise, the jurisprudence interpreting Art. 1810 is well established that the standard for granting a directed verdict mirrors the standard for granting a summary judgment. Reilly v. Dynamic Exploration, Inc., 571 So.2d 140 (La.1990).

Applying Art. 1810 and the underlying jurisprudence, we find that considering the facts the Pauls presented in light of the law of strict liability outlined above, the trial court did not abuse its discretion when it granted the motion for directed verdict urged by Jackson and Royal.

Finally, in closing, we note that in order for the Pauls to succeed in the trial court on an alternative negligence theory, it was incumbent upon them to show that Jackson had personal charge or exercised control over the work of her contractor. See, Pilgram v. Williford Roofing & Sheet Metal, 488 So.2d 269 (La.App. 3rd Cir.1986), writ denied, 492 So.2d 1222 (La.1986). Although plaintiffs generally alleged the negligence of Jackson in their petition, the record does not establish facts by a preponderance of the evidence which support this allegation.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Pauls.

AFFIRMED.

SAUNDERS, J., dissents with reasons.

SAUNDERS, Judge,

dissenting.

I respectfully dissent. I do not agree with the majority for the following reasons:

The majority finds that LSA-C.C. art. 2322 is inapplicable to the case before us because the defect in the building, i.e., the steps not being attached, was not a defect in the original construction of the building. The plaintiff points out, however, that our supreme court has read LSA-C.C. art. 670 and 2322 in unison to reach the following rule of strict liability:

“[T]he owner has a non-delegable duty imposed by Article 670 and 2322 to keep his building in repair and free of defects constituting an unreasonable risk of injuries to others. The owner’s agreement with or reliance upon a contractor or tenant to perform this duty imposed by law on him, the owner, does not constitute that contractor or tenant a ‘third person’ for purposes of exculpating the owner from his liability under these code articles.”

Olsen v. Shell Oil Co., 365 So.2d 1285, 1293 (La.1979).

Clearly, the building in the present case is not “free of defects constituting an unreasonable risk of injuries to others” and the contractor who removed the steps cannot be considered a third person “for purposes of exculpating the owner from his liability under these articles.”

The majority also finds that liability cannot be predicated upon LSA-C.C. art. 2317, reasoning that:

“A plaintiff who attempts to impose liability under Art. 2317 on the custodian of a defective thing must prove: (1) the thing had a vice or defect; (2) the defect presented an unreasonable risk of harm to others; (3) the thing was in defendant’s custody; and, (4) damage was caused by the defect. Epps v. Society of The Holy Family, 583 So.2d 1216 (La.App. 4th Cir.1991). If any one of these elements is missing, the plaintiffs strict liability claim falls.
“A defect for the purposes of Art. 2317 is a flaw or condition of relative permanence inherent in the thing as one of its qualities. Boudreaux v. Farmer, 604 So.2d 641 (La.App. 1st Cir.1992), writs denied, 605 So.2d 1373, 1374 (La.1992). A temporary condition may constitute a hazard, but it does not constitute a defect as contemplated by Art. 2317. Id.”

It seems, at the very least, that the issue of whether the detached steps create a flaw or condition of relative permanence inherent in the thing as one of its qualities is a question of fact to be determined by the jury. It might be argued that there is “no relative permanence” in the detached condition of the steps since presumably, the contractor will in the near future attach the steps. However, if the contractor does not attach the steps, the condition will remain permanent. This condition is not the same as a rock or dampness upon the porch which, by their nature, have little or no permanence. Thus, a distinction can be made in this ease between slip and fall cases where a rock or a peeling on the porch might be blown away by the wind or washed away by the rain or swept away during routine maintenance and/or cleaning as opposed to extraordinary type of activities such as is being undertaken by the contractor in the present case. The issue of permanence should be determined by the jury. 
      
      . UPS's worker's compensation carrier, Liberty Mutual Insurance Company, intervened in the trial court. However, since Liberty has not filed an appeal, it is not before us and the judgment is final as to it.
     