WHIPPLE, C.J.
This matter is before us on appeal by the plaintiff, Linda R. Kennett, from a judgment of the trial court denying her motion for partial summary judgment and granting summary judgment in favor of the defendants, the Department of Public Works through the City of Bogalusa.
For the reasons that follow, we reverse in part, affirm in part, and remand.
On April 7, 2011, Kennett exited the Bogalusa City Hall building, where she had been paying her water bill. While walking to her car, she purportedly tripped and fell on a sidewalk located directly outside of City Hall. On May 12, 2011, Kennett filed a petition for damages contending that the area of the sidewalk where she tripped and fell was uneven, and thus defective, and that, as a result of her fall, she sustained injuries to her face, wrists, and teeth. Named as defendants were the Department of Public Works through the City of Bogalusa ("the City") and James Hall, the Director of the Department of Public Works. By first and second supplemental and amending petitions, Kennett also named Risk Management, Inc. ("RMI") and Louisiana Municipal Risk Management Agency, Group Self Insurance Fund for Public Liability Risk Sharing as defendants.
RMI filed a motion to dismiss, contending: (1) that the City is a member of an interlocal risk management agency and participates in an intergovernmental agreement pursuant to LSA-R.S. 33:1343, and (2) that RMI is the administrator of the self-insurance fund. RMI contended that pursuant to LSA-R.S. 33:1345, an interlocal risk management agency is not an insurance company or an insurer under the laws of this state, and thus, was not subject to direct action as an insurer. Thus, RMI contended, as the third-party administrator of the self-insurance fund, it was not a proper defendant in this suit. The trial court granted the motion, dismissing Kennett's claims against RMI.
Louisiana Municipal Risk Management Agency ("LMRMA") likewise responded by filing an exception of no right of action and request for sanctions pursuant to LSA-C.C.P. art. 863. Therein, LMRMA contended that pursuant to LSA-R.S. 33:1345, LMRMA is unmistakably not an insurance company or insurer, that its actions do not constitute participation in an insurance business, and thus, no direct action existed against it under Louisiana's Direct Action Statute.
In the interim, on March 8, 2012, Kennett filed a motion for sanctions due to spoliation. Therein, she contended that at some point between September 22, 2011 and November 29, 2011, the City had repaired the section of the sidewalk where she had fallen. Kennett contended that she had retained Darryl Fussell, P.E. of Arrow Engineering & Consulting for the purpose of conducting and performing an analysis of the subject premises, but that he was unable to do so because the premises had been altered. Contending that the defendants had intentionally destroyed significant evidence, which presumes that the structure of the sidewalk was damaging to their defense and additionally suggests that the sidewalk was defective, Kennett also sought to have the court apply an adverse presumption that the evidence would have been detrimental to the City of Bogalusa's case. On May 22, 2012, the trial court signed a judgment denying Kennett's motion for sanctions.
On August 22, 2012, the City filed a motion for summary judgment contending that Kennett could not establish that the sidewalk crack at issue herein created an unreasonable risk of harm, which was necessary to prevail on a liability claim against public entities under LSA-R.S. 9:2800. Thus, the City sought dismissal of Kennett's claims with prejudice. On September 26, 2012, Kennett likewise filed a motion for partial summary judgment as to the City's liability under LSA-R. S. 9:2800.
The cross-motions for summary judgment were heard by the trial court on October 22, 2012,
Kennett now appeals, contending that the trial court erred in: (1) maintaining LMRMA's exception of no cause of action; (2) denying Kennett's motion for sanctions due to spoliation of evidence; (3) granting the City's motion for summary judgment; and (4) denying Kennett's motion for partial summary judgment.
In her first assignment of error, Kennett contends that the trial court erred in maintaining the exception of no cause of action urged by LMRMA. At the outset, we will address the City's contention that Kennett's appeal of the trial court's grant of LMRMA's exception is untimely, and thus, not properly before us for review.
The trial court maintained the exception in favor of LMRMA by judgment dated May 22, 2012, which provides as follows:
Although the judgment maintained LMRMA's exception and assessed costs, it did not dismiss a party from the litigation or dismiss any of Kennett's claims.
This Court's jurisdiction extends to final judgments.
However, as this Court has previously held, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment.
With regard to Kennett's contention that the trial court erred in maintaining LMRMA's exception, we note that the objection that a petition fails to state a cause of action is properly raised by the peremptory exception. LSA-C.C.P. art. 927(A)(5). The purpose of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged in the pleading.
Generally, no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. However, as set forth in
The burden of demonstrating that a petition fails to state a cause of action is upon the mover.
In Kennett's second amending and supplemental petition naming LMRMA as a defendant herein, she alleged the following:
The exception urged by LMRMA sought dismissal of Kennett's claims against it on the grounds that it was not an insurer pursuant to LSA-R.S. 33:1345, and therefore no direct action existed against it under LSA-R.S. 22:1269.
Kennett argues on appeal that she named LMRMA as a party defendant to the litigation "just as any plaintiff would name all solidary obligors as party defendants." Kennett argues that "If LMRMA is responsible for any and all payments rendered against Bogalusa up to the policy limits found in the above-referenced indemnification agreement, then LMRMA must be a party to the lawsuit or else Ms. Kennett is faced with the unenviable position of obtaining a judgment against Bogalusa, and then filing a separate action to obtain payment of the judgment from a responsible third party indemnitor." Thus, Kennett contends, LMRMA is a proper defendant herein.
The City counters that LMRMA undisputedly was created pursuant to the Local Governmental Subdivision Self Insurance Act of 1979, codified in LSR-R.S. 33:1341, et seq. As such, the City maintains that Kennett cannot proceed directly against LMRMA, since, pursuant to LSA-R.S. 33:1345, LMRMA is not an insurer or an insurance company. We agree. Pursuant to LSA-R.S. 33:1345:
By these clear, express and unequivocal terms, interlocal risk management and group self-insurance funds for various Louisiana municipalities and political subdivisions are unmistakably not insurance companies or insurers, their actions do not constitute participation in an insurance business, and they are not subject to the provisions of Title 22, Chapter 1 of the Louisiana Revised Statutes. LSA-R.S. 33:1345;
On de novo review, we find the trial court correctly dismissed Kennett's claims against LMRMA.
This assignment of error lacks merit.
In her second assignment of error, Kennett contends that the trial court erred in denying her motion for sanctions due to spoliation of evidence and for entry of an adverse presumption.
The theory of "spoliation" of evidence refers to an intentional destruction of evidence for the purpose of depriving opposing parties of its use.
In her motion for sanctions due to spoliation of evidence, Kennett contended that after she filed suit in this matter on May 12, 2011, without notice to her, and at sometime between September 22, 2011, and November 29, 2011, the portion of the sidewalk where the accident occurred was repaired. Kennett further contended that the defendants intentionally destroyed significant evidence, which presumes that the structure of the sidewalk was damaging to their defense and additionally suggests that the sidewalk was defective. Although Kennett acknowledges that she was able to obtain photographs of the portion of the sidewalk where she fell, she contends that she had retained a professional engineering firm for the purpose of conducting and performing an analysis of the premises, and that since the premises has been altered by the defendants, she was prevented from conducting an analysis.
The City counters that plaintiff failed to set forth any evidence that would tend to show the City's sidewalk repair was for the purpose of destroying evidence. The City contends that at no time did plaintiff request that the City keep the sidewalk in the same condition that it was at the time of her fall, or otherwise advise the City that she had retained an expert for the purpose of conducting an analysis. Further, the City contends that plaintiff cannot rightfully argue that the City should be assessed with an adverse presumption where plaintiff fell in April of 2011, filed suit in May of 2011, and then waited nearly six months to have the sidewalk inspected. The City argues that in repairing the sidewalk, it was taking precautionary measures to prevent future possible injuries to the public. Thus, the City contends, Kennett's motion was properly denied, as the record reveals no intentional destruction of evidence for the purpose of depriving the opposing party of its use.
On review, we agree. The record contains no evidence to support a conclusion that the City intentionally destroyed evidence to deprive plaintiff of its use. Furthermore, the presumption of spoliation is not applicable where, as here, the failure to produce the evidence is adequately explained and the City had no indication Kennett would need the evidence in the future.
This assignment lacks merit.
In her final assignments of error, Kennett contends that the trial court erred in granting the City's motion for summary judgment and in denying her motion for partial summary judgment as to the City's liability.
In the instant case, the trial court was presented with cross-motions for summary judgment. In the November 29, 2012 judgment, the trial court denied plaintiff's motion for partial summary judgment, but granted the City's motion for summary judgment. Although the denial of a motion for summary judgment is generally non-appealable,
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 for all or part of the relief prayed for by a litigant.
A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. LSA-.C.C.P. art. 966(F)(I). Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with LSA-C.C.P. art. 966(F)(3). Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion. LSA-C.C.P. art. 966(F)(2).
The burden of proof on a motion for summary judgment remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant'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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. 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. LSA-C.C.P. art. 966(C)(2).
Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. LSA-C.C.P. art. 967(B);
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate.
In the instant case, the City of Bogalusa undisputedly is a public entity. In order to hold a public entity liable under LSA-R.S. 9:2800(C), a plaintiff must prove the following: (1) custody or ownership of the defective thing by the public entity,
The Supreme Court has applied the risk-utility balancing test to determine whether a defect in a sidewalk creates an unreasonable risk of harm, and has determined there is no fixed rule in determining whether a defect in a sidewalk is unreasonably dangerous.
In support of its motion for summary judgment, the City presented: (1) the first page of Kennett's petition for damages; (2) Kennett's deposition testimony; (3) photographs of the sidewalk area; (4) the deposition testimony of James Hall, the Director of Public Works for the City of Bogalusa; (5) the deposition testimony and affidavit of Elbert Buckley; (6) a medical report from Dr. Jacobo W. Chodakiewitz; and (7) photographs of Kennett's injuries.
The City contends that, under the evidence it presented, the trial court's decision to grant summary judgment in its favor was appropriate, where the area containing the 1 1/2 inch sidewalk crack had been in that condition for at least 16 years, the City had no prior complaints and was aware of no prior accidents, and that Kennett concedes that the sidewalk in question was the sidewalk located directly outside of Bogalusa City Hall, and was arguably one of the most used sidewalks in all of Bogalusa. In support, the City relies on
In support of her partial motion for summary judgment, Kennett offered: (1) her own affidavit; (2) the deposition testimony of James Hall, with attached photos of the sidewalk area; (3) the deposition testimony of Jerry Bailey, the Director of Administration for the City of Bogalusa; (4) the affidavit of Kennett's expert, Darrell Fussell, P.E. of Arrow Engineering and Consulting, Inc. Civil and Structural Engineering; (5) her deposition; (6) the affidavit of Elbert Buckley; and (7) the City's answers to interrogatories and responses to requests for production of documents.
In deposition testimony, Kennett stated that at the time of the alleged incident herein, she had exited City Hall and was walking on the sidewalk, heading in the direction of her car. She testified that she had receipts in her hand and was looking down and watching where she was going, when someone that she did not recognize called for her from across the street. Kennett stated that when she started to wave at them "to notice them," she tripped and fell. The photographs introduced by Kennett show an area with cracks in the concrete sidewalk of approximately 1 1/2 inches in height.
The deposition testimony of James Hall, the Director of Public Works for the City of Bogalusa, was that in the fifteen years he had been employed by the City, he had not received any complaints about the sidewalk area in front of City Hall where Kennett contends she fell. He had seen that particular area of sidewalk and testified it was easily observable to him and any other pedestrians. He stated that his department followed the guidelines of the International Building Code ("IBC").
Darrell Fussell, a professional engineer, stated that he understood Kennett fell in the area of the "substandard sidewalk" depicted in the photos and that the sidewalk area had recently been repaired. He further stated that most trip-and-fall accidents are caused by unexpected changes in the walking surfaces, and that the unlevel and cracked area in the sidewalk certainly created an unexpected change. He found it "significant" that the substandard sidewalk area was adjacent to a handicap parking area marked for handicap access. Fussell noted that the Americans with Disabilities Act ("ADA") provided guidelines for the proper construction of sidewalks and required local and state governments to prioritize the installation of curb ramps on sidewalks serving governmental facilities. After setting forth several provisions of those guidelines, Fussell concluded that it was clear that the substandard area of sidewalk created a hazard in an area of public access and that the area of substandard concrete was not properly constructed to meet ADA standards.
On de novo review of the record before us, we are unable to say that either party established a right to judgment in its favor as a matter of law. At a minimum, we find that contrary to the trial court's ruling, Fussell's expert opinion, as set forth in his affidavit, clearly discloses that genuine issues of fact remain, precluding summary judgment regarding the City's liability.
In reaching that conclusion, we are obligated to consider whether a defect creates an unreasonable risk of harm herein by applying the guiding precepts recently set forth in
(Footnotes omitted.)
Thus, whether a defect presents an unreasonable risk of harm is a determination of fact that takes into consideration the utility of the complained-of condition; the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; the cost of preventing the harm; and the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature.
To the extent that the City relies on
Accordingly, we find the trial court erred in granting summary judgment in favor of the City and in dismissing plaintiffs case with prejudice.
For the above and foregoing reasons, the portion of the November 29, 2012 judgment of the trial court granting the City's motion for summary judgment is hereby reversed. The portion of the November 29, 2012 judgment denying Kennett's partial motion for summary judgment is hereby affirmed. This matter is remanded to the trial court for further proceedings.
Costs of this appeal in the amount of $3,637.25 are assessed equally to the City of Bogalusa and Linda R. Kennett.
CRAIN, J., concurs.
I concur in the result a recognize that the majority's opinion is in accord with Currie v. Scottsdale Indemnity Company, 12-1666 (La. App. 1 Cir. 8/26/13), 123 So.3d 742; however, I write separately because I respectfully disagree with certain statements contained in Currie, which were unnecessary for that result, but which are repeated in the majority opinion herein and misconstrue the holding of Broussard v. State ex rel. Office of State Buildings, 12-1238 (La. 4/5/13), 113 So.3d 175.
Citing Currie, the majority opinion states that "under Broussard and Currie, we are constrained to find that the analysis of whether an open and obvious defect presents an unreasonable risk of harm is now held to involve a determination of fact, that must take into consideration the victim's own comparative fault, among other factors; and accordingly, is not appropriate for summary judgment." Kennett v. Department of Public Works, 2013 CA 0824, * ___ (La. App. 1 Cir. ___, 2013) (unpublished opinion). I respectfully submit that this statement is an erroneous interpretation of Broussard that adds further uncertainty to an area of the law that Broussard sought to clarify.
The issue in Broussard was whether a defect presented an unreasonable risk of harm. Broussard, 113 So. 3d at 184. The court repeated the well-established rule that in making this factual determination, the fact-finder is to use a "riskutility" balancing test that includes four factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility and whether it is dangerous by nature. Broussard, 113 So. 3d at 184.
Much of the opinion in Broussard is devoted to the second factor, which includes consideration of whether the defect was "open and obvious." According to the court, "Although the `open and obvious' argument suggests a disguised application of contributory negligence or assumption of the risk, when the risk is open and obvious to everyone, the probability of injury is low and the thing's utility may outweigh the risks caused by its defective condition." Broussard, 113 So. 3d at 184 (citing Maraist & Galligan, Louisiana Tort Law § 14.03, p. 14-9). Utilizing this "open and obvious to all" standard, the court found a reasonable factual basis for the jury to conclude that the misaligned elevator was not an open and obvious defect. Broussard, 113 So. 3d at 188-189.
After reviewing and weighing the remaining three factors, the court held that the record contained a reasonable basis for the jury's finding that the defect presented an unreasonable risk of harm, concluding, "Under this risk-utility balancing, the elevator's defective condition was not open and obvious to all, and thus the risk of harm created by this condition was significant in comparison to the elevators' social utility and the relatively low cost to the State of preventing the harm." Broussard, 113 So. 3d at 193.
Based upon the foregoing, I respectfully disagree with the statements in Currie, repeated in the majority opinion herein, that (1) the issue before the court in Broussard was whether an open and obvious defect constituted an unreasonable risk of harm, (2) that Broussard held that the plaintiff's comparative fault should be considered in determining whether a defect creates an unreasonable risk of harm, and (3) that a summary judgment is never appropriate for determining whether a defect presents an unreasonable risk of harm.
The Broussard court found that the defect in that case was not open and obvious. Broussard, 113 So. 3d at 188-189. Thus, Broussard does not involve a claim based upon an "open and obvious" defect, and the court did not opine when, if ever, an open and obvious defect would present an unreasonable risk of harm.
Broussard also did not incorporate the plaintiff's comparative fault into the analysis of whether a defect presents an unreasonable risk of harm. The only consideration to be given to the plaintiffs activities in the determination is the social utility of the activity and whether the activity is dangerous by nature. Broussard, 113 So. 3d at 184. The court found that Broussard's activity of delivering office supplies "is highly useful to society" and that the record supported a finding that the activity was not inherently dangerous. Broussard, 113 So. 3d at 193. The extent of Broussard's comparative fault was not before the court nor was it considered in the court's analysis of whether the defective elevator presented an unreasonable risk of harm. Instead, the plaintiffs knowledge of the defect and considerations such as the extent of the risk created by the actor's conduct are more appropriate considerations for apportioning comparative fault pursuant to Louisiana Civil Code article 2323. Broussard, 113 So. 3d at 188-189, 193. As stated by the court, "The open and obvious inquiry ... focuses on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the victim's actual or potentially ascertainable knowledge." Broussard, 113 So. 3d at 188. Accordingly, while a plaintiffs knowledge of the defective condition may warrant an allocation of comparative fault, his awareness of the risk is not a factor in determining whether the defect presents an unreasonable risk of harm.
Finally, the Broussard court's characterization of the analysis as "fact-intensive" does not foreclose the possibility that a summary judgment may be appropriate in some cases. Notably, the court favorably cited and discussed Dauzat v. Curnest Guillot Logging Inc., 08-0528 (La. 12/2/08), 995 So.2d 1184, wherein the supreme court reversed the trial court and granted a summary judgment dismissing a premises defect case filed by a truck driver based upon a hole in a logging road. The Broussard court distinguished Dauzat as a case involving a defect that was "open and obvious to all," and for the reason that the truck driver was engaged in an inherently dangerous activity. Broussard, 113 So. 3d at 190-191. While the Broussard court emphasized that the unreasonable risk of harm determination is "a matter wed to the facts," Broussard, 113 So. 3d at 183, the court's holding does not preclude a summary judgment in an exceptional case where the undisputed facts establish that a defect does not present an unreasonable risk of harm, or, as the case may be, does present an unreasonable risk of harm. The present case does not fall within that category, and, for that reason, I concur in the result reached by the majority.
On appeal, this Court, reversed, finding the jury's conclusion that the elevator offset created an unreasonable risk of harm was erroneous on the basis that because the defect was open and obvious, and thus, did not present a serious risk of harm. In doing so, this court noted that the victim could have avoided his injuries by acting more reasonably under the circumstances.
