GENOVESE, J.
Plaintiff, Wilson J. Trahan, appeals a trial court judgment dismissing his suit for
This litigation arises out of a July 21, 2010 accident at the Acadiana Mall shopping center in Lafayette, Louisiana. At approximately 9:30 a.m. on that day, Mr. Trahan sustained a closed fracture of his right fibula when he slipped and fell on the shopping center premises. Previously, the trial court granted Acadiana Mall a judgment of involuntary dismissal, and, on appeal, this court reversed that judgment and remanded the matter to the trial court for further proceedings. Trahan v. Acadiana Mall of Delaware, 14-232 (La.App. 3 Cir. 10/1/14), 149 So.3d 359. The subsequent proceedings on remand resulted in a second trial court judgment in favor of Acadiana Mall, dismissing Mr. Trahan's claims, and the matter is again before us as a result of Mr. Trahan timely appealing that judgment.
The evidence adduced on remand did little to change the basic facts set forth in our initial opinion:
Id. at 361-63.
In our first opinion, this court reversed the trial court's involuntary dismissal of Mr. Trahan's suit against Acadiana Mall, finding that the trial court committed manifest error when it concluded that Mr. Trahan's accident was caused by the open and obvious puddle rather than the apparently dry-looking, but algae-accumulated surface next to the puddle. We further stated:
Id. at 364.
The evidence on remand consisted of additional testimony from Mr. Thibodeaux and Mr. Pritchett as a part of Acadiana Mall's defense to Mr. Trahan's claims. At the close of this evidence, the trial court rendered oral reasons for judgment again finding that Mr. Trahan slipped because he stepped into an open and obvious hazard consisting of the puddle and its surrounding perimeter. In reaching this conclusion, the trial court stated the following:
In the previous appeal, this court made the distinction between the "accumulated surface-water" and the "accumulated algae[.]" Id. Thus, for purposes of clarity, following the testimony on remand, and the trial court's oral ruling, the trial court was specifically asked for clarification relative to the actual puddle of standing water and the area surrounding the puddle of water. Specifically, the trial court, when asked to clarify the area encompassing the open and obvious risk, stated:
When asked to further clarify in light of this court's finding that the trial court factually erred in blaming Mr. Trahan's accident on the "accumulated surface-water" and not the "accumulated algae," the trial court stated: "I call it mud. I don't know what anybody else would call it. I'm looking at the pictures. A slip in the mud[.]" Thus, what this court characterized as "accumulated algae," the trial court "would call it mud. And that's what he slipped in[,] and that's what made the mark on the picture."
On November 3, 2015, the trial court submitted a written judgment conforming to its ruling. The trial court then responded to Mr. Trahan's request for written reasons for judgment filed on November 13, 2015, by providing him with a transcript of the oral reasons for judgment. Thereafter, Mr. Trahan perfected the appeal currently before us.
Mr. Trahan presents the following assignments of error for our review:
The law applicable to this matter was set out in our original opinion as follows:
Id. at 363-64.
The factual findings of the trial court are subject to the manifest error/clearly wrong standard of review.
Snider v. La. Med. Mut. Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).
It is undisputed that Acadiana Mall had custody of the area where the accident occurred. It is also undisputed that the walkway contained a vice or defect, that Acadiana Mall knew or should have known of the existence of the vice or defect, that the vice or defect could have easily been prevented by the exercise of reasonable care, and that Acadiana Mall failed to exercise reasonable care. The only disputed issue is whether the existing vice or defect presented an unreasonable risk of harm. A
In this case, the additional testimony on remand included that of Mr. Thibodeaux, a security officer at Acadiana Mall. Mr. Thibodeaux testified that he was called to the location where the accident happened by Mr. Les Comeaux, a maintenance man. According to Mr. Thibodeaux, he arrived there quickly. Mr. Thibodeaux had a conversation with Mr. Trahan, who showed him where he had slipped and fallen. Mr. Thibodeaux had the opportunity to see the accident scene just after its occurrence and was able to provide the trial court with a description of how the area appeared. Mr. Thibodeaux was also able to refer to photographs of the accident scene and provide the trial court with an explanation of what was depicted in the photographs.
It is clear from the testimony of Mr. Thibodeaux that there was water present at the location of the accident. By his accounting, the presence of the water was greater than that depicted in some of the photographs due to evaporation which occurred from the heat of the day. Mr. Thibodeaux explained the presence of water and explained that the fall happened "in a wet area." He also described the presence of "crootch" in the area. In his words, the "entire area" was covered in water and "crootch." He stated the area "wasn't dry[;] ... [i]t was full of water." Notably, Mr. Thibodeaux confirms that the area was wet, that he could see the slip marks from where Mr. Trahan fell, and that Mr. Trahan had "moisture" on his thigh.
The second witness to testify on remand was Mr. Pritchett, the Director of Operations of Acadiana Mall. Mr. Pritchett learned of Mr. Trahan's accident from Mr. Thibodeaux. The two of them completed the incident report and took pictures of the location where the accident happened. Mr. Pritchett estimated that the photographs taken by him were taken between one-and-a-half to two hours after Mr. Trahan's fall. He testified that by the time he took the photographs, the water in the area had receded. In his words, "[t]here was like a water mark where the pavement was still damp, or the concrete was still damp and then the area where the water was standing."
Mr. Trahan's testimony on the condition of the area of his fall differed from that of Mr. Thibodeaux and Mr. Pritchett. Mr. Trahan testified that he observed standing water and an area eighteen to twenty-four inches wide that "looked like it was dry." He explained that when he stepped, he stepped into an area that appeared to be dry and that "[i]t kind of had an ashy look from the sun." Mr. Trahan was clear that he did not step into the water puddle.
In reaching our conclusion herein, we note that both parties, in brief to this court, discuss the trial court's statement that Mr. Trahan "put his hands on the bollard to steady himself" insomuch as that action supported the conclusion that Mr. Trahan was aware of the open and obvious condition before he stepped and fell. However, as explained by our supreme court in Broussard, 113 So.3d at 188, the relevant inquiry is not whether Mr. Trahan was aware of the open and obvious condition of the area; rather, "in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition." We find that the record supports the trial court's conclusion in this case that it was. Thus,
In Christiano, the fifth circuit affirmed the trial court's grant of a motion for involuntary dismissal based upon its finding that the alleged defect was open and obvious. Analogous to the case at bar, Christiano involved a slip and fall in an area described as "a little sloppy[,]" but that appeared to by dry. Id. at 1061. The "slop" in that case was "oil and some other kind of substance[,]" which was present next to some "dried mud." Id. The plaintiff testified: "It was wet underneath the mud. It was like some more slop, but you couldn't see it just by looking at it. It was like it was dry." Id. Affirming the trial court, the fifth circuit reasoned:
Id. at 1064.
In the instant matter, the trial court was presented with conflicting testimony. When considering the evidence, the trial court had the opportunity to observe the demeanor of the witnesses and to assess their credibility. The trial court considered the evidence, including the photographs, and made a determination that Mr. Trahan's fall was caused by an open and obvious condition. Additionally, the trial court was specific in elaborating on what it considered to be encompassed by the puddle and concluded that Mr. Trahan slipped in "mud." We find that this determination is supported by the record. There are certainly two permissible views of the evidence in this case; however, "[w]here two permissible views of the evidence exist, the fact-finder's choice between them cannot be manifestly erroneous or clearly wrong." Stobart v. State, Dep't of Transp. and Dev., 617 So.2d 880, 883 (La.1993). We are bound not to substitute our judgment for that of the trial court.
Based on the foregoing, we affirm the judgment of the trial court in favor of Defendants, Acadiana Mall CMBS, LLC; ERMC III Property Management Company, LLC; and, ERMC II, LP. All costs of this appeal are assessed to Plaintiff, Wilson J. Trahan.
Peters, J., dissents and assigns written reasons.
PETERS, J., dissents.
I agree with the majority that this is a manifest error case. However, unlike the majority, I find that the trial court was clearly wrong in its factual conclusions. Specifically, the trial court erroneously relied on testimony based on supposition in reaching the factual conclusions that the defect causing Mr. Trahan's injuries was
There are two testimonial versions of this accident: Mr. Trahan's version and Mr. Thibodeaux's version. However, Mr. Thibodeaux did not witness the accident.
According to Mr. Trahan, the standing water in the service road caused him to have to step down from the sidewalk at its intersection with the service road that was closest to the mall itself. He placed his right hand on the bollard and stepped down onto a surface area eighteen to twenty-four inches wide which appeared to be dry. In doing so, he slipped on a buildup of algae on the apparently dry surface area. Mr. Trahan's version of the accident is supported by photographs he took within thirty minutes of the accident as well as the photographs taken by Charlie Pritchard approximately one hour after the occurrence of the accident. Both sets of photographs clearly show an eighteen to twenty-four inch area between the sidewalk and the standing water which appears to be dry.
Mr. Trahan testified that when he fell, his right knee and foot hyperextended and rolled to the inside, and that his right hip struck the curb. As a result of his fall, he sustained a fractured fibula in his right leg as well as bruising injuries to his right shoulder, hip, knee, leg, ankle, and foot. The medical evidence supports Mr. Trahan's version of the mechanics of the accident. In fact, Mr. Thibodeaux's testimony based on his observations and not his conclusions, supports Mr. Trahan's version of the accident as well. Mr. Thibodeaux testified that when he first arrived at the scene, he observed moisture on Mr. Trahan's pants at the thigh level. This observation is totally consistent with Mr. Trahan's testimony that his right hip struck the curb. Had Mr. Trahan fallen where Mr. Thibodeaux observed the purported skid mark, he would have been soaking wet.
Additionally, Mr. Thibodeaux admitted that Mr. Trahan's photographs reflected an accurate picture of the scene of the accident sometime after he arrived at the scene, including the fact that there existed a section of roadway adjacent to the sidewalk that was water free. In trying to explain his purported earlier observation of water adjacent to the sidewalk, Mr. Thibodeaux suggested that during the thirty minutes he spoke with Mr. Trahan, the water had evaporated sufficiently to expose the water-free area depicted in the photographs. This explanation is simply not plausible. According to Mr. Pritchard, the photographs taken by him over one hour after the accident depicted the same scene as did Mr. Trahan's photographs. For Mr. Thibodeaux's explanation to be accurate, the exceedingly fast evaporation process he described would have to come to a come to a complete stop between the taking of Mr. Trahan's pictures and the taking of Mr. Pritchard's pictures.
In its reasons for judgment, the trial court accepted Mr. Thibodeaux's suggestion that Mr. Trahan used the bollard to steady himself because he [Mr. Trahan] recognized that he was "getting in a slippery condition[,]" and in doing so, "he slipped." The problem with the trial court's factual conclusions from a manifest error/clearly wrong analysis is that there is no evidence Mr. Trahan used the bollard to steady himself, and the only part of Mr. Thibodeaux's testimony supported by the other evidence in the record is that Mr. Trahan's pants were merely damp. Additionally, the trial court concluded, based on Mr. Thibodeaux's testimony, that Mr. Trahan slipped in mud at the edge of the sidewalk. There is no evidence of an accumulation of mud where Mr. Trahan suffered
As we stated the first time this matter was before us, "[i]t is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of `manifest error' or unless it is `clearly wrong.'" Evans v. Lungrin, 97-541, 97-577, p. 6 (La. 2/6/98), 708 So.2d 731, 735. Additionally,
Trahan v. Acadiana Mall of Del., 14-232, p. 6 (La.App. 3 Cir. 10/1/14), 149 So.3d 359, 364.
A vice or defect does not constitute an unreasonable risk of harm if it is open and obvious. Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La. 4/5/13), 113 So.3d 175. Additionally, "[i]n order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition." Id. at 188. In this case, Mr. Thibodeaux acknowledged that the surface adjacent the standing water would be slippery from any algae buildup, even if it appeared to be dry. In other words, the dangerous condition was not open and obvious.
I find that Mr. Trahan established by a preponderance of the evidence that Acadiana Mall had custody of the area where the accident occurred; that the area wherein Mr. Trahan suffered his accident contained a vice or defect; that Acadiana Mall knew or should have known of the existence of the vice or defect; that the vice or defect could have easily been prevented by the exercise of reasonable care; and that Acadiana Mall failed to exercise reasonable care. Based on this finding, I would award damages to Mr. Trahan. I reach the conclusion that the walkway contained a vice or defect based on the physical evidence and Mr. Thibodeaux's testimony that the pedestrian walkway would have been rendered unsafe by the presence of a slippery surface — and a slippery surface is exactly what Mr. Trahan slipped on in sustaining his injury. Mr. Thibodeaux testified that he conducted numerous inspections of the area on a daily basis, yet neither he nor any other representative of Acadiana Mall recognized that the water in this area was not being properly removed by the ten-inch drain. Thus, Acadiana Mall knew or should have known of the vice or defect. Additionally, Mr. Pritchard testified that a buildup of debris in such an environment is to be expected because the debris would not normally be dispatched with the flowing water. The testimony of both Mr. Pritchard and Mr. Thibodeaux establish that the vice or defect could have been prevented simply by maintaining a clear path for the accumulating water to be removed by the ten-inch storm drain provided for that purpose, and by power washing the accumulated debris. The evidence establishes that Acadiana Mall failed to exercise this reasonable care. I also find that the existing vice or defect presented an unreasonable risk of harm.
I would reverse the judgment of the trial court finding that Mr. Trahan failed to prove the elements of his claim, and would award him damages for the injuries he sustained.
