Ilene TASK v. Aubrey GATES and St. Paul Fire and Marine Insurance Company, 770 So. 2d 21

JjDOUCET, Chief Judge. This is an appeal from a trial court’s decision to grant the Defendant’s motion for

summary judgment and dismiss the plaintiffs claim for damages incurred when her house was burglarized. In order to sell her Alexandria, Louisiana house, the Plaintiff, llene Task, entered a “multiple listing agreement” with Prudential Noles-Frye Realty. She moved to Texas, leaving keys to the house and instructions for arming and disarming its security alarm system. Pursuant to the listing agreement, Prudential allowed Aubrey Gates, a realtor with Century 21, to show the house. He picked up a key and alarm instructions from Prudential. When he entered the house the alarm went off.

He located the alarm and turned it off using the instructions provided. After showing the house he followed the instructions for reactivating the alarm and exited the house through the front door. No one showed the house again and on December 31, 1997, a Prudential agent discovered that the house had been burglarized. It was discovered that the Plaintiff had provided instructions for reactivating the alarm which were accurate only for use with the side entrance. Task sued Gates and his insurer, St.

Paul Fire and Marine Insurance Company, alleging negligence on the part of Gates in failing to properly activate the alarm system. Gates and St. Paul filed a motion for

summary judgment, arguing that no material issue of fact remained but that Gates breached no duty owed to Task with regard to showing the house. The trial court granted the motion and dismissed Task’s claims against the Defendants. Task appeals. I ¡..SUMMARY JUDGMENT Our review of a grant or denial of a motion for

summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for

summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This

article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the

article was further amended to specifically alter the burden of proof in

summary judgment proceedings as follows: The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2257, p. 7 (La.2000); 755 So.2d 226, 230. In this case, Task seeks to hold Gates liable for a negligent failure to properly set the security alarm on her house. To determine whether a defendant is liable for negligent conduct, the duty/ risk analysis of LSA-C.C.

Art. 2315 must be applied. Rowe v. Schumpert Medical Center, 26,334 (La.App.2d Cir.12/07/94), 647 So.2d 390, 393, writ denied, 95-0075 (La.03/17/95), 651 So.2d 268. Whether a duty is owed is a question of law. Whether the defendant breached that duty is a question of fact. [The plaintiffs] allegations that the [defendants] were negligent is subject to a duty-risk analysis, Roberts v. Benoit, 605 So.2d 1032 (La.1991).

The duty/risk analysis involves a four-prong inquiry: (1) cause-in-fact, i.e., whether the defendant’s conduct was a substantial factor in bringing about the harm to the plaintiff; (2) whether the defendant owed a duty to the plaintiff; (3) whether the defendant breached the duty; and (4) whether the risk, and harm caused, was within the scope of protection afforded by the duty breached. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318. In order for the plaintiff to recover, all four inquiries must be answered affirmatively. Roberts v. Benoit, supra; Mart v.

Hill, 505 So.2d 1120 (La.1987); Moore v. Esponge, 94-1192 (La.App. 3d Cir.03/08/95), 651 So.2d 962, 965. Thus, the defendant will be entitled to

summary judgment if, without any real doubt, any one inquiry is answered negatively. Mixon v. Davis, 31,725, pp. 3-4 (La.App. 2 Cir. 3/31/99); 732 So.2d 628, 630. Recovery in this case turns on the determination of whether Gates breached any duty owed to Task with regard to securing her house. We must determine whether Gates “acted with the degree of care and skill ordinarily exercised by brokers, cf. Boudreaux v. Panger, 490 So.2d 1083 (La.1986).” Egudin v. Carriage Court Condominium, Dehrvill Group, Inc., 528 So.2d 1043, 1048 (La.App. 5 Cir.1988) As the court stated in Mallet v.

Maggio, 503 So.2d 37, 38 (La.App. 1 Cir.1986), writ denied, 504 So.2d 880 (La.1987): Ultimately the precise duties of a real estate broker must be determined by an examination of the nature of the task the real estate agent undertakes to perform and the agreements he makes with the involved parties. According to his unrefuted deposition testimony, Gates undertook only to follow the instructions given him with regard to setting the alarm. He followed the instructions provided by Task herself and, in spite of this, the alarm was not set.

We find no authority for imposing a duty which would require a real estate agent to know more about an individual alarm system than the owner of the system. Accordingly, we find that Gates did not breach any duty owed the Plaintiff. As a result, we affirm the trial court’s grant of the motion for

summary judgment. AFFIRMED. SAUNDERS, J., dissents and assigns written reasons.