louisiana is a civilian state which means that first and foremost we look to the civil code for guidance and in the area of fault article twenty three fifteen is bedrock a fault it's a says essentially that anyone who causes harm to another is obligated to repay that harm that same notion carries through into the less or less able a ship but it's even more strict because our civil code says that in general a less or mean of that responsibility as shown in articles twenty six ninety six to twenty six ninety nine but that lesson in responsibility to allow a shifting of responsibility for defective conditions to the lessee must be by clear and unambiguous language with a few caveats for purposes of this argument we will concede that the lease agreement is clear in unambiguous even though it cites to a nonexistent amended answer one of the defendants pled nine thirty two twenty one as an affirmative defense which means like any other firm it's of defense such as contributory negligence fault of a third party they bear the burden of proof of each essential element of that affirmative defense and that statute essentially says that a lesser can escape liability for a defect in the premises which causes harm only if the last or can prove two things and i think at this point it's important to look at a timeline of events in the early morning hours of january fifth two thousand and sixteen rhonda lam suspected that the blower of her here unit was on fire so she called the after hours line at ashford place nobody responded so at one fifty eight in the morning she called the particle and they showed up at two o six investigated and couldn't find evidence of a fire up later that the next day she continued smell she believes it was some sort of smoky smell and reported to ashford place they hired an outside consultant to come in on january sixth they investigated said the blower motor needs to be replaced in house to place the motor that night a smoke event occurred and at twenty thirty three rhonda lamb called the fire department they showed up shortly thereafter and their notes which are in the record show that they made some disappointment was removing a smoldering blower unit rhonda lam was taken by ambulance to the hospital at that time ashley place and later replaced that smoldering blower unit they had just put in with a new unit that has a different part number and everything worked fine so that raises of a date on your chart for that particular  pretty quick response is not quick enough no the response is that what was the defect at issue and is there really two questions what was the defective issue and what was the six so in essence they never fixed the defect the district court felt the defect was the sticks the work they did on the six the defect was the fifth that they never remembered and that is the essence of the case nine thirty to twenty one dead and providing protection to the defendant of these circumstances because there was both notice of a defect and a reasonable opportunity to repair if it had been repaired correctly on the s that would have been no second event there would have been no injury they had the opportunity to correct the theory knowledge thirty two twenty one is not strict liability it's notice and reasonable well actually no i don't i don't it  does say a reasonable time to repair however the case law says that it involves only strict liability and not negligence claims that was one of the issues we raise because they only filed a motion for strict no they they haven't in fact the defense said says cited the all state case for that principle but if you read all state actually it says just the opposite they did two analyses they did an analysis under nine thirty two twenty one strict liability found that it was not applicable then they did a separate analysis of negligence so that case while cited by the appellate actually supports our position and because of that the and the district court failed to reconsider that issue when it was raised and brought reconsideration you know this was a motion for summary judgment and i think everybody would agree that on summary judgment the movement bears the burden of proof of demonstrated an absence of material questions of fact and  material questions of fact there was a defect it was lack of eldest of his lack of opportunity to repair or they actually did remedy the circumstance and everybody would agree that the nonmoving party can defeat a motion for judgment by showing the existence of material questions of fact but who has the initial burden of proof since this is an affirmative defense the burden of proof rests with the it that is that is true a day does meld with that but the thing is what have they proven have they proven these arguments have they proven there was a defect on reconsideration they allege of clearly there was a defect in the motor but they had the motor in their the the district court because this is an affirmative defense the defendant has to prove the elements of exculpation under nine thirty two twenty one they have to prove there was a defect and not negligent installation they have to prove that there was no you know there was an adequate notice they have to prove there wasn't a reasonable opportunity to remedy the district court place the burden of proof on the plaintiff to prove why the motor burned up was not her burden the defendants destroyed the evidence so how are we possibly to prove that that motor was defective as opposed to negligent installation we know that if they changed the port there was a different part they put in on january sixth after the the motor burned up and that motor worked properly but a good knowledge that thirty two twenty one says there's liability only if there's a failure to quote remedy it within a reasonable time that is correct that is doesn't sound like strict liability it sounds like you're notified and then you behave reasonably i understand that john but the unfortunate that the courts say it is a strict liability statute and in fact if you if you read the exhaustive article by professor long grass she goes through an exhaustive listing of why it only applies to strict liability and why don't they applies to third party claims as a matter of fact this court has only the cases the first one thousand nine hundred sixty eight celestin versus employer's mutual three eighty seven fed second five thirty nine a decision by justice wisdom of judgment as to this court said that nine thirty two thirty two twenty one was volkswagen versus robertson in which the issue of knowledge of a less or of a potential flooding condition after a hurricane was pivotal in denying relief to the less are but here we deal in know with probably that case dealt only with property damage and not personal injury because civil code article two thousand and four clearly says any clause is know in advance that in advance excludes or limits the liability of one party for causing physical injury to another you can make you can in advance exclude property damage but not personal injury and that is the latest pronouncement of legislative will in louisiana while i have additional time i really don't need it here because in summary r s nine thirty one thirty two twenty one doesn't apply under these circumstances because the elements haven't been shown  it does not include negligence the defendants didn't carry their burden of proving this affirmative defense and there are disputed questions of fact that should have denied summary judgment in any event they did novo review of the record  which is the appropriate standard of review will reveal each of these conclusions having reviewed the supplemental on the letter break we asked for on jurisdiction and of course we do we determine whether we have jurisdiction but it's my stalled position of the parties having read the ashford place department's letter brief do you agree that because you failed to move three man that we have jurisdiction i would agree that the form defendant rule is applicable here this is a little bit somewhat somewhat different we didn't address that issue we just simply dress the improper jointer that the court asked us to talk about know the side points out that for this type of basis for remand if you don't do it in the case goes to judgment it's too late to pursue it now we have a case on point in our circuit on that i was just curious as to your failed in plaintiff's apartment mr robinson who is the maintenance man for the apartments installed and tested the motor and confirmed that it was working properly later that evening plaintive called to complain but before mr robinson in this bamber could make it back the plaintiff was allegedly overcome by feelings the law applicable is i think specialized because this lease has an indemnity provision which says quote resident assumes full responsibility for least premises and then goes on for an actual surprising amount of time talking about the different indemnities but that puts this lease squarely within the ambit of nine thirty two twenty one which says when l s e it seems responsibility for the address the situation when it happened they did not have an opportunity to fix it now i would say that there is a lot of briefing has gone on in this case about conflicts in the law and the civil code the statutes the leases public policy but really what i think the court needs to focus on is what was in the opposition that was filed by plaintiff there was excerpts of miss bamberg deposition a copy of the fire department repor and really nothing else so there was no evidence of mr robinson's negligence in installing an improper motor there was no evidence from an engineer or h professional saying that the good minuteman a replacement motor g d m b t was somehow the inappropriate replacement part for this system but we basically have is a case where the plaintive failed to prove a prime a facial case of negligence when you want to call it strict liability are of the opinion that strict liability is largely been abrogated in louisiana and while we still call twenty three seventeen as a shorthand strict liability because you could be liable for an object without your active negligence it really requires your knowledge of the defect in the product and your failure to remedy it which is just brings you right back around to negligence as professor mario tores professor used to say you know it doesn't really matter what you want to call it in the short handed all comes back to a duty risk analysis and i think that what you get here in this case is you get a failure of the plaintiffs to satisfy the elements of the do d risk analysis whether you want to call it strict liability or anything else and i think the judge just james put his finger on and he says right here page nine of his slip opinion plaintiff however provides no evidence for now the level of when how or why a defendant should have known before sure of ported fumes footnote twelve that robinson installed the replacement motor incorrectly footnote thirteen where the robinson installed the wrong motor or defective motor basically he's pointing out that there's no evidence of anything that ashford police did negligently or in appropriately in this case so i think we could go off on a big rabbit hunt about co law and things like that but i don't think that it's i don't think this case presents is right for that because you have a simple failure of players to do surprise to face a case of negligence or strict liability or whatever you want to call the hybrid forced power electric motors and you know when i buy my card had to be of goodrich tires on it when they were out i like goodyear put goodyear tires on my car they have a different part number but it doesn't mean i'm negligent in putting a different bran so i think when when counsel gets back up to rebut i think the court should ask him what evidence did he attach in opposition to summary judgment to show that he could satisfy the elements of the negligence case what elements can he show that mr robinson was negligent in installing this part or that ashford police department's was negligent in ordering the wrong part for this equipment as basically all i have i'd happy to answer the court's questions that the court has wrinkle is the fact that this motor was repaired twice the first repair plenty of claims didn't fix it and when you look at the plain language of the statu e it says the owner knew or should have known of the defect well the owner certainly knew because she had reported it on the morning of the fifth had received or had received notice thereof that's the way the owner knew about it and failed to remedy it within a reasonable time well there's no question in your place engine within a reasonable time but did you remedy it so it seems to me we're looking more at the first repair than at the second repair and of course we'll just have to see juggling record on that but what your position couple of things your honor i think it's an interesting point and i would say that on appeal the plaintiff has expanded the timeline back to the first repair there's no doubt that no damage was done to miss lamb by the first repair or the first noticing of a smoky smell in her apartment the plaintiff has conceded that my damages all stem from the second installation of the motor so i think that what i have to wonder why do you extend the time line back there to the first repair that's the first notice of the root of the beef and didn't an immediate response by ashford place to come out  i had a motor case early in my career stick to the record well motors motors can burn up a think as plaintiffs even concede at page forty four of their brief that that was a third option that the motor could have simply failed out of the you keep saying that it must have been installed improperly or it must have been the wrong part footnote ok yes the third option was that the motor could have failed to but even going back to the very beginning of this chart how much time are we talking the day with that they recommended then unfortunately that motor failed and caused the smoke event which causes damage to the plaintiff but in my logic the real beginning part of the timeline is when this your honors the as i mentioned on the ferment of burden of proof the senate has if they are going to are certain nine thirty two twenty one we've cited two cases the windows in the spotter cases which specifically went through that same analysis and said that while you may have shown that you did not actually know of the defect you had a hand up to there's a question as to whether you might have known what if they submitted in support of trying to say they did not know and could not have known an affidavit of had the bamberg which is full of rank hearsay i heard someone told me this or they said that or they said they did this none of that is admissible evidence all we have is her evidence that she went out herself and got a motor for the maintenance department to install it you seek to exclude parts of her affidavit no we did not and thank you did the judge show the the time period while it may have been a day may been two days to do the installation the question is however long that was is really not material because it was clearly sufficient time because they had they did the work if it was one hour and they did the work but they did it wrong they had enough time to do it and vector is there was a defect there was no notice was given they took the opportunity to repair it they repaired it incorrectly the defect was never where the deed and the injuries occurred this was simply a motion as you have liability if there is a failure to remedy within a reasonable time that is correct and what is your argument that two days is not a reasonable time it is a reasonable time the fact is that it is the statute is written in the negative so it's a little little awkward to discuss in it but the the point is what is a reasonable time to remember the defect the time that they took they had the time they got the part they took the old one out they put a new one and if they had done it correctly that would have remedied the defe that was a reasonable period of time yet they'd never remedied the defect are you just going on the old race observe the local tour i can certainly as this court standard europe meaning they put in a new par and it didn't work so obviously they didn't put in the correct part are they is i put your saying i am as a plain family title rely on that but also on the entire law and circumstantial evidence as this court standard jury charge  states and that circumstantial evidence is that they took one part they put it in and whether it was the right part of the wrong part of they put it in incorrectly it didn't work and it failed so they did not remedy the initial defect that was report