MOORE, J.
The State of Louisiana Military Department appeals a partial summary judgment, as to liability only, in favor of Kim Bates, who sustained a trip-and-fall accident on the grounds of the Louisiana National Guard Armory in West Monroe, Louisiana. We affirm.
On September 5, 2003, a contingent of Guardsmen was returning to Louisiana from a tour in Afghanistan. Ms. Bates, along with several family members, went to the National Guard Armory on Industrial Drive in West Monroe to greet her
According to her deposition, Ms. Bates had never been to the armory before. Her niece handed her a camera and asked her to take pictures when the Guardsmen got off the bus. The crowd was very large, and when the first vehicle (actually a station wagon, not a bus) turned off the road, the crowd started cheering and edging toward the street. Ms. Bates lifted the camera to her eyes and started moving with the crowd. Suddenly, she fell and hit the grass. At first she thought the crowd had shoved her over, but as she got up she discovered there was a line or wire stretched between two posts; it had tripped her and actually cut her legs. She saw other people tripping on the line, but nobody else fell.
Not wanting to disrupt the homecoming, Ms. Bates declined an offer to call an ambulance. However, she alleged that she sustained several injuries requiring medical attention for about a year and resulting in residual pain seven years later.
Ms. Bates's father, Kenneth Eubanks, saw her fall. In deposition, he stated the line appeared to be a telephone wire or other cable about 2 inches off the ground, with no warning signs on or near it. He also stated he could not imagine why it was placed there.
Although the crowd at the homecoming was large, Ms. Bates offered no other depositions or affidavits from anyone else who saw her fall or described the line. She also offered no photographs of the line.
Ms. Bates and her husband filed this suit against the Louisiana National Guard Armory and the State of Louisiana Military Department in August 2004. Ms. Bates took a preliminary default in February 2005, but it was never confirmed. The state finally answered in September 2006, entering general denials and a request for jury trial.
In September 2010, Ms. Bates filed this motion for partial summary judgment as to liability. She attached the four depositions and argued that the line posed an unreasonable risk of harm of which the state had actual or constructive knowledge. She also argued that a plaintiff can be found free of fault for tripping over an unreasonably dangerous object in her path, as occurred in Nuckley v. Cox Cable New Orleans, 527 So.2d 414 (La.App. 4 Cir.), writ denied, 532 So.2d 115 (1988).
The state opposed the motion, arguing that although under La. C.C.P. art. 966 C(2) the mover had the burden of proving no genuine issue of material fact, Ms. Bates had failed to show that she was free of fault. In support, it offered a portion of Ms. Bates's deposition. The state offered no other summary judgment evidence.
The court held a hearing, which was not transcribed, in November 2010, and granted Ms. Bates's motion in June 2011. The judgment stated merely that there was no genuine issue of material fact that the state was solely liable for the accident at issue. The state took this appeal.
The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Samaha v. Rau, 2007-1726
Appellate courts review summary judgments de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Sensebe v. Canal Indem. Co., supra; Tillman v. Eldridge, 44,460 (La. App. 2 Cir. 7/15/09), 17 So.3d 69.
A landowner owes a duty to a plaintiff to discover any unreasonably dangerous condition, and either to correct it or warn of its existence. La. C.C. art. 2317; Eisenhardt v. Snook, 2008-1287 (La.3/17/09), 8 So.3d 541. In determining whether a condition is unreasonably dangerous, courts have adopted a four-part test, requiring consideration of (1) the utility of the complained-of condition, (2) the likelihood and magnitude of the harm, (3) the cost of preventing the harm, and (4) the nature of the plaintiff's activities in terms of its social utility, or whether it is dangerous by nature. Dauzat v. Curnest Guillot Logging Inc., 2008-0528 (La.12/2/08), 995 So.2d 1184. However, the landowner generally has no duty to protect against an open and obvious hazard. Eisenhardt v. Snook, supra, and citations therein. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether a condition is unreasonably dangerous. Id.; Williams v. Ruben Residential Properties, 46,040 (La. App. 2 Cir. 3/2/11), 58 So.3d 534.
By two assignments of error, the state urges that summary judgment was inappropriate because Ms. Bates failed to establish that there was no genuine issue of material fact that she was free from fault in the accident. It argues that by her own admission, Ms. Bates "had a camera up in front of her face to take pictures" and "wasn't looking where she was stepping as she moved along." Citing La. C.C. art. 2317.1 and R.S. 9:2800, it argues that not every defect in the premises gives rise to liability. Moore v. Oak Meadows Apartments,
The only description of the wire comes in the deposition of Ms. Bates's father, Kenneth Eubanks:
Ms. Bates did not see the wire; she stated, "I don't know what the wire was there for. I know it was a wire. It cut through my leg." She also stated that after she fell, she noticed other people stumbling over it.
This evidence shows that Ms. Bates tripped on a taut wire suspended a mere two inches above the grassy ground. In common experience, such a wire in such a place is not easy to see, even in the exercise of normal caution. Its latency, and the fact that other people were stumbling on it, strongly support the conclusion that the wire was unreasonably dangerous. After the accident, Mr. Eubanks looked at the wire and could not discern its purpose, if any. A large crowd of well-wishers had come to the Armory to greet returning Guardsmen; the social utility of their presence is obvious. In short, Ms. Bates's showing satisfied most of the elements to prove an unreasonable risk of harm, under Dauzat v. Curnest Guillot Logging, supra, and negated the additional element that the condition was open and obvious, under Eisenhardt v. Snook, supra. We find that this showing constituted proper support for the motion under La. C.C.P. art. 966, and shifted the burden to the state to adduce specific facts that would create a genuine issue for trial. La. C.C.P. art. 967 B.
In response, the state filed the first nine pages of Ms. Bates's deposition (which Ms. Bates had already filed in its entirety), arguing that because she was trying to take a picture, she was not using normal caution and, at any rate, the wire was open and obvious. However, Ms. Bates's deposition establishes the exact opposite, that the wire was not open and obvious. Any evidence of the purpose of the wire, its social utility, or the cost of removing it when the public was present—all relevant factors under Dauzat—are conspicuously absent from the state's showing. The state primarily asks this court to indulge the speculation that at a full trial, a jury might choose to disbelieve Ms. Bates and her father, and conclude that the wire did not pose an unreasonable risk of harm. Such speculation does not suffice to defeat a properly supported motion. Jones v.
Finally, the state somewhat poignantly admits that counsel herself has been persistently unable to communicate with the Armory's ranking officer and his assistant, as both have been deployed and redeployed to Afghanistan. We are sensitive to counsel's difficult position, and suggest that these circumstances might have supported a motion for continuance, or perhaps some other relief under the Servicemembers Civil Relief Act, 50 U.S.C.App. § 520, et seq. The fact remains, however, that over six years after suit was filed, and over two months after the motion for summary judgment, the state produced no specific facts that would create a genuine issue for trial. On this record, Ms. Bates's motion for partial summary judgment is properly supported and she is entitled to judgment as a matter of law. The judgment is affirmed.
For the reasons expressed, the partial summary judgment is affirmed. Any unpaid costs are to be assessed at the conclusion of trial, pursuant to La. R.S. 13:5112.