Filed: Mar. 21, 2013
Latest Update: Mar. 21, 2013
Summary: NOT DESIGNATED FOR PUBLICATION KUHN, J. Plaintiff-appellant, Roddy Chiasson, appeals the trial court's judgment, granting summary judgment and dismissing his claims against defendant-appellee, JEL, LLC, as owner of JL's Place (JL's Place), for damages after he sustained personal injuries in a bicycle accident. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On January 1, 2009, Chiasson was riding his mountain bike, in an area known as Tigertown in Baton Rouge, generally traveling in an easterl
Summary: NOT DESIGNATED FOR PUBLICATION KUHN, J. Plaintiff-appellant, Roddy Chiasson, appeals the trial court's judgment, granting summary judgment and dismissing his claims against defendant-appellee, JEL, LLC, as owner of JL's Place (JL's Place), for damages after he sustained personal injuries in a bicycle accident. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On January 1, 2009, Chiasson was riding his mountain bike, in an area known as Tigertown in Baton Rouge, generally traveling in an easterly..
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NOT DESIGNATED FOR PUBLICATION
KUHN, J.
Plaintiff-appellant, Roddy Chiasson, appeals the trial court's judgment, granting summary judgment and dismissing his claims against defendant-appellee, JEL, LLC, as owner of JL's Place (JL's Place), for damages after he sustained personal injuries in a bicycle accident. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 1, 2009, Chiasson was riding his mountain bike, in an area known as Tigertown in Baton Rouge, generally traveling in an easterly direction to the Circle K Stores, Inc. convenience store (Circle K) located at 4405 Alvin Dark Avenue to pick up some bread and milk. He traversed a vacant lot adjacent to the Circle K premises on one side and a shopping center located on Bob Pettit Blvd on the other where two bars, JL's Place and Mike's Daiquiris,1 were housed. Chiasson drove over a speed bump allegedly situated primarily on the western side of the vacant lot and partially on the eastern side of the Circle K premises. Once his front tire crossed over the speed bump, he encountered a pothole, and Chiasson was thrown off his bike approximately 6-8 feet. He put his hand out to break the fall and landed on the ground. Chiasson sustained injuries to his left arm, neck, and back.
On January 29, 2009, Chiasson filed this lawsuit, naming JL's Place and its insurer as defendants.2 After answering the lawsuit, JL's Place filed a motion for summary judgment, averring that Chiasson had failed his burden of proving all the elements of his claim and, therefore, it was entitled to be dismissed from the lawsuit. The motion was continued to allow Chiasson more time to conduct discovery. On October 17, 2011, the trial court heard the motion and granted summary judgment in favor of JL's Place, dismissing Chiasson's claims with prejudice.3 This appeal followed.
DISCUSSION
Summary judgment is proper 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. 966B. The initial burden of producing evidence at the hearing on the motion for summary judgment is on the mover. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006. If the mover will not bear the burden of proof at trial on the subject matter of the motion, they need only demonstrate the absence of factual support for one or more essential elements of their opponent's claim, action, or defense. If the moving parties point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966C(2). 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., determining 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, 2007-1726 (La. 2/26/08), 977 So.2d 880, 882-83.
The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La. 3/10/06), 923 So.2d 627, 633. Whether a duty is owed is a question of law. Id. 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., 2010-1683 (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. Vinccinelli v. Musso, 2001-0557 (La. App. 1st Cir. 2/27/02), 818 So.2d 163, 165, writ denied, 2002-0961 (La. 6/7/02), 818 So.2d 767.
There are two theories of liability available to a plaintiff who claims he was injured as a result of the condition of a thing: negligence, under La. C.C. arts. 2315, and strict liability, under La. C.C. arts 2317 and 2317.1. Under either theory, 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. Vinccinelli v. Musso, 818 So.2d at 165.
The trial court concluded that JL's Place did not owe a duty to Chiasson because all of the evidence admitted at the hearing showed that the alleged cause of the accident was a pothole that is undisputed was located wholly on the Circle K premises. On appeal, Chiasson asserts that genuine issues of material fact preclude that conclusion.
Among the evidence Chiasson introduced at the hearing was the affidavit of Dr. Olin Dart, a civil engineer, who is a professor emeritus of civil engineering at LSU with "recognized expertise" in traffic engineering, highway design, traffic safety, and accident reconstruction. Dr. Dart stated:
The concrete "speed bump" between the two parking lots is a "two-faced" device. From the east it gives the appearance of a normal speed bump (which [is] 2" high and 9 to 24" wide) that could be easily traversed. From the west, it appears more like a barrier being some 9" higher than the Circle K lot level. . . . I assume that the tire marks on the device are from vehicles going west and bottoming out on the top. Those vehicles going over the "barrier" were responsible for creating the potholes most probably when the gravel was wet. . . .
There is no question but that this faulty "speed bump"/"barrier" was defective and along with the potholed gravel surface abutting the Circle K parking lot were the direct causes of [Chiasson's] bicycle crash. . . . Approaching this device at a reasonable speed and traversing it with his front wheel in contact with the surface, the sudden drop into the pothole did retard the forward movement of the bicycle and catapulted [Chiasson] onto the concrete parking lot of the Circle K store.
While Dr. Dart attested that it was his opinion that the speed bump was "defective," a careful review of his conclusion actually supports the trial court's determination that it was the pothole — located wholly in the Circle K parking lot — that was the cause-in-fact of Chiasson's accident.
This conclusion was underscored by the deposition testimony of Chiasson. Chiasson candidly admitted that on the night of the accident, he did not see exactly what caused him to be catapulted from his bicycle; he just knew that he hit something. It was subsequent to his release from the hospital 14 days later that Chiasson returned to the accident site and, based on his observations that day, surmised that it must have been the pothole that abruptly stopped him. Chiasson testified:
I knew when I got to the top of the speed bump, there was a drop off. . . . And I went over the drop off and something stopped me abruptly. I hit something like that was the side of a curb. If I wouldn't have hit something that was the side of a curb, I would have been alright. I'm a pretty good athlete. I would have ridden through.
Although Chiasson adamantly asserts that because the speed bump was located on the vacant lot and, therefore, who had custody, control, or garde of the speed bump is an outstanding issue of material fact that precludes summary judgment, he has offered no evidence to support a finding by the trier of fact that the cause-in-fact of the accident was anything other than the pothole located on the Circle K premises. Thus, JL's Place has demonstrated a lack of support for the cause-in-fact element of Chiasson's claim. And because the cause-in-fact of the accident was the pothole located wholly on the Circle K premises, the trial court correctly determined that JL's Place did not owe a duty to Chiasson arising from any interests it may have in the speed bump and did not err by granting summary judgment in its favor and dismissing the bar from this lawsuit.4
DECREE
For these reasons, the trial court correctly granted summary judgment and dismissed JL's Place from this litigation. Appeal costs are assessed against plaintiff-appellant, Roddy Chiasson.
AFFIRMED.
