EDWIN A. LOMBARD, Judge.
The plaintiffs appeal the judgment of the trial court granting summary judgment in favor of the defendants. After a de novo review of the evidence in light of the relevant law, we affirm the trial court's judgment.
On Christmas evening of 2006, Mrs. Labit delivered a gift and a meal to her daughter, Ms. Dinah Letellier, an employee of The Palms Casino & Truck Stop, Inc. ("the Palms Casino") in St. Bernard Parish. She was driven to the Palms Casino in a 2000 Nissan Quest van by her daughter, Ms. Yvonne Brown; Mrs. Labit's husband, now deceased, accompanied them.
Upon their return to the van, Mrs. Labit fell on the passenger side of the vehicle. Ms. Brown, however, was entering the driver's side of the vehicle and did not see her mother fall. As Mrs. Brown was opening her car door, Mrs. Labit fell on the wheel stop on the opposite side of the van. Subsequently in her deposition testimony, Mrs. Labit conceded that, although she had no trouble seeing the ground because of the lighting conditions, she was unsure of what caused the fall. Although she assumed it was because of the wheel stop because "they" told her so, no eyewitnesses came forward to testify as to whether the accident was caused by the wheel stop.
Mrs. Labit and her husband, Hayes Labit,
After taking the depositions of Mrs. Labit, Mr. Bosarge, Darryl Eckert (the project manager for J & R Amusement), and Ms. Brown, each defendant filed a motion for summary judgment.
On July 28, 2011, the plaintiffs and the defendant, the Palms Casino, filed a joint motion for hearing on August 18, 2011 to be submitted on the record, without oral argument. On September 9, 2011, the trial court granted the motions for summary judgment in favor of all the defendants. The plaintiffs appeal.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together
The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 8 (La.3/10/06), 923 So.2d 627, 633 (citations omitted). Whether a duty is owed is a question of law. Id. (citations omitted). As a general rule, the owner or occupier of land has a duty to keep the property in a reasonably safe condition. Pryor v. Iberia Parish School Bd., 10-1683, p. 3 (La.3/15/11), 60 So.3d 594, 596. This includes a duty to discover any unreasonably dangerous conditions on the premises and either correct the condition or warn potential victims of its existence. McCloud v. Housing Authority of New Orleans, 08-0094, p. 3 (La.App. 4 Cir. 6/11/08), 987 So.2d 360, 363.
There are two theories of liability available to a plaintiff who claims she was injured as a result of the condition of a thing: negligence, under Louisiana Civil Code Articles 2315 and 2316, and strict liability, under Louisiana Code Articles 2317 and 2317.1. Under both theories of liability, a plaintiff must prove that the condition of the thing presented an unreasonable risk of harm, or was defective, and that this condition of the thing was a cause-in-fact of her injuries. McCloud v. Housing Authority of New Orleans, 08-0094, p. 3, 987 So.2d 360 at 362.
"A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83.
On appeal, the plaintiffs assign as error (1) the trial court erred when it dismissed the plaintiffs' claims against J & R Amusement; (2) the trial court erred when it dismissed the plaintiffs' claims against the Palms Casino; and (3) the trial court erred when it dismissed the plaintiffs' claims against Mr. Bosarge.
J & R Amusement asserts that it is entitled to judgment as a matter of law because the plaintiffs will be unable to meet their burden of proof at trial as the conditions at issue were not unreasonably dangerous, and even if they were, J & R Amusement had no notice that said conditions were unreasonably dangerous or defective. In support of its motion, J & R Amusement submits (1) the deposition testimony of Mr. Eckert stating that J & R Amusement relied on the expertise of Mr.
In opposition to J & R Amusement's motion for summary judgment, the plaintiffs assert summary judgment is inappropriate because genuine issues of material fact exist as to whether the wheel stop was unreasonably dangerous, specifically: (1) whether J & R Amusement owed a duty to the plaintiffs to paint the wheel stop or use a bollard; and (2) whether the wheel stop should have been obvious to Mrs. Labit. In support of their opposition, the plaintiffs submit (1) the deposition testimony of Ms. Brown stating that Mrs. Labit had been to the Palms Casino "a couple times" before the accident and when they arrived at the Palms Casino it was getting dark; (2) the deposition of Mrs. Labit testifying that she had been to the Palms Casino before the accident; (3) the deposition Mr. Bosarge testifying that it was his personal preference to paint a wheel stop in a location where there may be some pedestrian traffic, that painting one wheel stop would have cost $6.00, and that with respect to whether or not the wheel stop could create a dangerous condition, there were other factors involved in this particular instance, including the lighting; (4) the deposition of Charles Bienvenu, the corporate president of J & R Amusement and the Palms Casino, testifying that the parking lot at the Palms Casino was the same before and after Hurricane Katrina; (5) excerpts from Touro medical records; and (6) the affidavit of Mike Deharde, a registered professional engineer in Louisiana, with attached photographs of the wheel stop at issue.
In reply to the plaintiffs' opposition to the motion for summary judgment, J & R Amusement asserts that summary judgment is appropriate because the condition is not an unreasonable risk based upon common application and there was no reason for J & R Amusement to have known that this common application represents an unreasonable dangerous condition. In support, J & R Amusement submits (1) the deposition of Mrs. Labit stating that she did not recall seeing the wheel stop, but she believed that the "something" she tripped on was the wheel stop based on what she was told by others; (2) the deposition testimony of Mr. Eckert, who states that he relied on the knowledge and expertise of a traffic engineer to ensure compliance with all applicable safety standards; and (3) the deposition testimony of Mr. Bosarge stating that he never raised any safety issues regarding the failure to paint the wheel stops and would not have expected J & R Amusement to have known that a safety issue existed.
Throughout its pleadings, J & R Amusement uses the term, "unreasonably dangerous," a term of art for products liability cases. However, the proper standard for negligence cases, such as the case at bar, is "unreasonable risk of harm." We also note that the terms, "unreasonably dangerous" and "unreasonable risk of harm" have been used interchangeably in caselaw, resulting in the intertwining and overlapping of the standards. See McCloud v. Housing Authority of New Orleans, 08-0094 (La.App. 4 Cir. 6/11/08), 987 So.2d 360; see also Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541
Once J & R Amusement pointed out there is an absence of factual support for one or more elements to the plaintiffs' claim, the burden shifted to the plaintiffs to produce factual support sufficient to establish that a genuine issue of material fact exists and that summary judgment is not appropriate. La.Code Civ. Proc. Art. 966(C)(2); Greenhouse v. C.F. Kenner Associates Ltd. P'ship, 98-0496 (La.App. 4 Cir. 11/10/98), 723 So.2d 1004, 1007. Thus, in this case, the plaintiffs needed to submit competent evidence to prove that (1) the unpainted wheel stop in the parking lot was a defect; and (2) J & R Amusement knew or should have known that this condition posed an unreasonable risk of harm to a reasonable and prudent person exercising ordinary care, such as expert testimony stating that unpainted wheel stops are an unreasonable risk of harm and not in line with applicable building codes and industry standards and/or records indicating a history of accidents due to unpainted wheel stops. The plaintiffs, however, only point to the testimony of Mr. Bosarge stating that it is his personal preference to paint wheel stops. Clearly, the "preference," even of an expert, does not constitute evidence that a condition creates an unreasonable risk of harm. Because the plaintiffs failed to introduce the necessary evidence that there is a genuine issue of material fact, J & R Amusement is entitled to summary judgment as a matter of law.
The Palms Casino asserts that, because the plaintiffs will not be able to produce factual support sufficient to satisfy their evidentiary burden of proof at trial to show that the wheel stop was in any way defective, nor will they be able to prove that the Palms Casino knew or should have known of such a defect, if one did exist, the Palms Casino is entitled to judgment as a matter of law. In support of their motion, the Palms Casino submits the affidavit of Fred Vanderbrook, an engineer licensed in Louisiana, attesting that there is no building code or other Louisiana requirement that requires wheel stops to be painted and that the Palms Casino's wheel stops met all building requirements, including all state and local building codes.
In opposition to the Palms Casino's motion for summary judgment, the plaintiffs argue that the affidavit containing an opinion does not resolve a disputed issue of material fact and the Palms Casino offers no evidence other than an affidavit of an engineer whose credentials on the issue of the applicable standards are not established. Further, the plaintiffs aver that the fact that a condition does not violate a building code or standard does not ipso facto render it "safe." Thus, the plaintiffs argue that a genuine issue of material facts exists as to whether or not the wheel stop was unreasonably dangerous, making summary judgment inappropriate. In support of these allegations, the plaintiffs submit only deposition testimony that the Palms Casino did not have a formal lease but paid rent to J & R Amusement.
In reply, the Palms Casino reiterates that no legal requirement to paint a wheel stop exists and the plaintiffs cannot meet their burden of proving negligence or that the Palms Casino knew or should have known of any dangerous condition.
Pursuant to Louisiana Code of Civil Procedure article 967(B), an adverse party may not rest on mere allegations or denials
Mr. Bosarge asserts that he is entitled to summary judgment because the plaintiffs' allegations against him are beyond the scope of the contract he had with J & R Amusement and the plaintiffs will be unable to prove at trial that he owes a duty to the plaintiffs to provide services, such as painting the wheel stops, which was not requested by J & R Amusement. Mr. Bosarge contends that he was asked to simply restore the parking lot to its pre-Katrina condition, and that he was never asked to perform any other activities. Further, Mr. Bosarge avers that there is no evidence in the record that an unpainted wheel stop constitutes a defect. In support of his motion, Mr. Bosarge submits (1) his deposition testimony that he has been a traffic engineer with Jefferson Parish for eighteen years and there are no building code requirements that wheel stops be painted; (2) the deposition testimony of Mr. Eckert, who has an extensive background in construction, stating that he hired Mr. Bosarge to restripe the Palms Casino's parking lot to "duplicate what was there" before Hurricane Katrina, that he did not speak with Mr. Bosarge until the work was completed and that he was satisfied with Mr. Bosarge's work; and (3) the copy of the "Plaintiffs' Responses to Written Discovery Interrogatories to Lillie Labit."
In opposition to Mr. Bosarge's motion for summary judgment,
In reply, Mr. Bosarge asserts that the plaintiffs' opposition memorandum is "totally inapposite to the present facts herein," and, therefore, the plaintiffs have failed to show any breach of duty by Mr. Bosarge or any other defendant. Mr. Bosarge asserts that the wheel stop was unpainted before Katrina and his restriping of the parking lot left the wheel stop unaffected and, thus, he did not create a defect. Moreover, he points out that the plaintiffs have submitted no evidence that an unpainted wheel stop constitutes a defect. He further contends that he was hired to restripe the parking lot and return it to its pre-Katrina status and there is no evidence to show that he was hired to perform any traffic engineering duties. Finally, he avers that the plaintiffs' argument that a painted wheel stop provides a greater contrast than an unpainted one is a statement of the obvious, requiring no expertise, especially to those involved in the construction trades.
While Mr. Bosarge is correct in his assertion that there is no legal requirement that a contractor owes a duty to a third-party to provide services which are not requested by the customer, a contractor does owe third parties a duty to exercise ordinary care and refrain from creating hazardous conditions in the fulfillment of its contractual obligations. Lyncker v. Design Engineering, Inc., 2007-1522, p. 3 (La.App. 4 Cir. 6/25/08) 988 So.2d 812, 814. But, as Mr. Bosarge points out, the plaintiffs' have failed to submit factual support for the essential element in their case, that the unpainted wheel stop created a hazardous condition. Mr. Hall's opinion, like Mr. Bosarge's personal preference, does not constitute evidence that an unpainted wheel stop is a hazardous condition. Thus, because the plaintiffs have failed to come forward with any evidence that an unpainted wheel stop creates a hazardous condition, Mr. Bosarge is entitled to summary
Upon de novo review, we find no genuine issue of material fact exists. Accordingly, the motions for summary judgment granted in favor of defendants, J & R Amusement Co., Inc., Delmas Bosarge, and The Palms Casino and Truck Stop, Inc. are affirmed.
TOBIAS, J., dissents in part and assigns reasons.
TOBIAS, J., dissents in part and assigns reasons.
This case comes to this court for review of the trial court's granting of the defendants/appellees motions for summary judgment. It is a case in which the plaintiffs/appellants have requested a trial by jury. In my view, the majority clearly errs in affirming two of the three trial court granted motions for summary judgment because genuine issues of material fact remain.
The majority, in my view, omits material facts from their opinion relative to this trip and fall case. Further, the majority's analysis of the law is flawed based upon the facts in this case. Thus, their de novo review reaches an incorrect result insofar as the appellants' claims against The Palms Casino & Truck Stop, Inc. ("The Palms Casino") and J & R Amusement Co., Inc. ("J & R Amusement"). The issue is not whether the wheel stop was "unreasonably dangerous," as the majority says and the defendants repeatedly argue; rather, the issue is whether a wheel stop in an inadequately lit parking lot creates an unreasonable risk of harm to an individual such as the plaintiff, Lillie Lab it. "Unreasonably dangerous" applies to a products liability case, not a trip and fall, resulting in injury. See La. R.S. 9:2800.51, et seq. No matter how many times the majority and the appellees state or urge that the wheel stop was not unreasonably dangerous, that is simply not the relevant test or law in this case. For the reasons that follow, I would reverse the granting of the motions for summary judgments in favor of The Palms Casino and J & R Amusement, but affirm the granting of the motion for summary judgment in favor of Delmas Bosarge d/b/a Bosarge Striping Service ("Bosarge").
At issue in this case is a 4.5-inch high, 7-inch wide, 72-inch long, gray concrete wheel stop.
Applying a duty-risk analysis to the facts of this case begs the following two questions: Did the wheel stop in its location on the day and at the time (night) of the accident, which resulted in very serious injuries to the plaintiff/appellant, Lillie Labit, create an unreasonable risk of harm to her as a pedestrian in the handicapped parking area of the parking lot? Similarly, comparative fault factors into the liability issues in this case, to-wit, was The Palms Casino, J & R Amusement, and/or Bosarge negligent, and was Mrs. Labit comparatively at fault for her own injuries? La. C.C. art. 2323. What more likely than not happened on Christmas night 2006 cannot be ascertained from an analysis and review of all of the motions for summary judgment and their attached affidavits, deposition, and other evidence.
The majority erroneously, in my view, tries to say that the phrases "unreasonably dangerous" and "unreasonable risk of harm" are basically synonymous. Therefore they surmise that when a defendant talks about a wheel stop not being unreasonably dangerous, the defendant means that the wheel stop did not create an unreasonable risk of harm. As I read the parties' briefs, it is eminently clearly that the parties meant only that the wheel stop was not unreasonably dangerous. I think everyone is in agreement that a wheel stop per se is not unreasonably dangerous as understood in laymen's terms, as opposed to what unreasonably dangerous means in our law. It's not that the wheel stop is and of itself unreasonably dangerous. What you do with the wheel stop — where you place it and how you identify it and make it obvious to clientele/patrons — can create an unreasonable risk of harm depending upon the facts of each individual case.
In context, the Supreme Court said and meant that the court of appeal erred in overturning a factual finding of the trial court that was neither manifestly erroneous nor clearly wrong — that the plaintiff was totally responsible for his own injuries. The issue was not one of unreasonably dangerous but rather whether the situation created an unreasonable risk of harm.
Similarly, the majority's reliance on McCloud v. Housing Authority of New Orleans, 08-0094 (La.App. 4 Cir. 6/11/08), 987 So.2d 360, is misplaced. The plaintiff in McCloud stepped in a mud filled hole in a construction site. As court said:
Obviously, someone walking across a construction site has a greater duty to observe where he is going as compared to one walking in a paved parking lot. The foregoing boldfaced language in McCloud states the law correctly. In the case before us, a genuine issue of fact is raised as to what an elderly person walking at night in a parking lot might expect. From the facts shown by the parties, the issue cannot be resolved in this case on the present motion for summary judgment.
The record on appeal from the district court in St. Bernard Parish discloses the following operative facts, which the majority omits:
1. Mrs. Labit was 76 years of age at the time of the subject accident. (Relevant because an elderly person's visual acuity, memory, and balance decline with age; further, an elderly person suffering physical injury is more likely than a youthful person suffering the same injury to have greater memory problems.)
2. The location of the accident scene is not clearly shown in the attached exhibits
3. The sidewalk, curb, parking lot, and wheel stops are gray colored concrete. (Relevant, inter alia, because in reduced lighting conditions, things made of gray concrete tend to blend in appearance.)
4. The lateral face of the sidewalk or curb is painted yellow, but that yellow is not visible for those walking away from The Palms Casino into the parking lot, and visible only those entering The Palms Casino from the parking lot. (Relevant because one would observe the yellow delineation, consciously or unconsciously, walking into the casino, and would expect, consciously or unconsciously, similar delineation on the way out.)
5. Ms. Brown says that she and Mrs. Labit delivered the gift and meal to Ms. Letellier. Contrariwise, Mrs. Labit says that only she delivered the meal. (Relevant because one person following another to whom he/she is related tends to be less observant, expecting the person in the lead to be watching and warning of hazards.)
6. The record does not clearly disclose how long Mrs. Labit and/or Ms. Brown were inside the casino, although it appears to be a brief period of time. (Relevant because of the time it takes one's pupils to adjust to changes in light; this is discussed further, infra.) Upon exiting The Palms Casino, Ms. Brown was in the lead as she and Mrs. Labit walked back to the van. Ms. Brown stepped down from the curb into the parking lot to get into the driver's side door of her van.
7. Although Mrs. Labit in deposition does say that she did not know what she tripped over, her last statement in deposition relative to the issue is that she tripped over a protruded portion of the wheel stop.
8. A hand-drawn diagram of the route taken by Mrs. Labit and/or Ms. Brown is in evidence. (Relevant because people do not always take a ramp or rise, instead choosing to take a shorter route such as stepping off a curb.)
9. Mrs. Labit fell and fell hard, sustaining a concussion, a broken nose in two places, broken cheekbones, bleeding in her brain, fractured one and [perhaps] both orbits of her skull, a stroke, seizures, memory loss and impairment, hallucinations, lacerations, extensive facial bruising, nightmares, depression, et cetera. She remained in the hospital for 3.5 months following her fall. She now requires caregivers and forgets where she is and how to return to her home. (Relevant, inter alia, because the nature of Mrs. Labit's injuries would cause an elderly person not to remember clearly how her injury occurred.)
10. The accident occurred at night; it is undisputed that the parking lot in that area was only dimly lit. Shadows were present. Part of the lighting was provided by a colored neon light from inside The Palms Casino. (Relevant because lighting
11. The Palms Casino was destroyed by Hurricane Katrina. It was not reopened until November 2006, less than 2 months before Mrs. Labit's injury. (Relevant because Mrs. Labit would not necessarily remember in any detail the layout of the parking lot.)
12. Bosarge, who was hired by the premises owner (as explained in greater detail infra), further opines that the curb face should not have been the only thing painted; rather four inches on the top of the curb should likewise have been painted. (Relevant to what a pedestrian sees or should see.)
The following are some, but not all, of the unanswered factual considerations that must be analyzed and factored into a consideration of this case, some of which are based upon the record and some from the common human experiences:
Mrs. Labit was an invitee onto the premises. Louisiana law on invitees can best be summarized as follows:
Mercer v. Tremont & G. Ry. Co., 19 So.2d 270, 275 (La.App. 2nd Cir.1944)(internal citations omitted).
As stated in Doe v. Hawkins, 09-1184 (La.App. 3 Cir. 6/9/10), 42 So.3d 1000:
Doe, 09-1184, p. 9, 42 So.3d at 1007.
The following balancing test must be used to decide whether a commercial establishment owes a duty of care to protect its customers and those visiting the premises: (1) the foreseeability of the risk on the defendant's property; (2) the gravity of the risk so as to determine the existence and the extent of the defendant's duty; (3) the greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business; and (4) a very high degree of foreseeability is required to give rise to a duty to post personnel, but a lower degree of foreseeability may support a duty to implement lesser measures such as installing improved lighting. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances. See Daniels v. Essex Ins. Co., 04-579 (La.App. 5 Cir. 11/30/04), 890 So.2d 599. The foreseeability and gravity of the harm are to be determined by the facts and circumstances of each case.
In sum in the case at bar, it is a genuine issue of fact from the conflicting deposition testimony, affidavits, and exhibits, considering the lighting conditions on 25 December 2006 and the observability of a gray concrete wheel stop located in a gray concrete handicapped parking area, whether the wheel stop and curb created an unreasonable risk of harm for a trip and fall injury to an elderly person walking in the area. Even Bosarge acknowledges in his deposition that a wheel stop can present a risk of injury if inadequate lighting is present. In evidence is the deposition of David Hall, a professional engineer employed by the appellants, who opines that wheel stops should not be placed in a foreseeable pedestrian path where low lighting conditions exist; further, color contrasts are needed. Such would certainly apply to a handicapped parking area.
It is Hornbook law that if genuine issues of material fact exist considering all of the circumstances, summary judgment is inappropriate. See La. C.C.P. arts. 966 and 967. The case at bar clearly establishes that genuine issues of material fact exists as to (a) what happened on the night of Christmas 2006, (b) what the lighting conditions were like in the parking lot on that evening, and (c) the length of time Mrs. Labit was inside The Palms Casino and how long it would reasonably take for her eyes to have adjusted going into the night and into a partially lit parking lot. The issue for the trier of fact is not only the reasonableness of the actions and inactions of The Palms Casino and/or J & R Amusement respecting the parking lot, but also the comparative fault, if any, of Mrs. Labit and even her daughter on that Christmas night. A duty-risk analysis of facts embraces a "but for" analysis of those same facts. That is, would an injury have occurred but for an elderly Mrs. Labit exiting The Palms Casino at night in an apparently partially lit parking lot and tripping over a gray concrete wheel stop located on top of gray concrete, regardless of whether a vehicle partially obstructed the view of
However, like the majority, I do not find that the trial court erred in granting the motion for summary judgment of Bosarge. Bosarge had no duty to Mrs. Labit; he had no contract, express or implied, with her. Bosarge's only duty was to the person who employed him to restripe the parking lot. What he told or did not tell The Palms Casino and J & R Amusement is between them. Bosarge was only hired to restripe the parking lot over the same previous markings that were in place before Hurricane Katrina. In fact, Bosarge acted only as the person who billed J & R Amusement for the restriping work, relying upon Danny Puffer to relay and describe to him the work that needed to be done so that he, Bosarge, could quote a price. Bosarge subcontracted the restriping work out to Mr. Puffer who did the actual work. And Bosarge only went out to the site after the work was completed and then related presentation to his bill for the services performed, not as a safety advisor about repainting the striping in the parking lot.
In my view, this case presents one of the clearest cases why (on the affidavits, depositions, and exhibits (as supplemented) attached to the motions for summary judgment and the oppositions thereto)
I respectfully dissent in part from the decision of the majority.
