Opinion
2014 CA 0992
12-23-2014
PEGGIE HUNTER v. MORTON'S SEAFOOD RESTAURANT & CATERING AND XYZ INSURANCE COMPANY
Allison K. Nestor John J. Finckbeiner, Jr. New Orleans, Louisiana Counsel for Plaintiff/Appellant Peggie Hunter George P. Hebbler, Jr. Frank A. Romeu, Jr. Michael H. Rodrigue, Jr. Metairie, Louisiana Counsel for Defendants/Appellees Wahoo, Inc. d/b/a Morton's Seafood Restaurant & Catering and Great Central Insurance Company a/k/a Argonaut Great Central
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court
In and for the Parish of St. Tammany State of Louisiana
No. 2007-11098 B
Honorable August J. Hand, Judge Presiding Allison K. Nestor
John J. Finckbeiner, Jr.
New Orleans, Louisiana
Counsel for Plaintiff/Appellant
Peggie Hunter
George P. Hebbler, Jr.
Frank A. Romeu, Jr.
Michael H. Rodrigue, Jr.
Metairie, Louisiana
Counsel for Defendants/Appellees
Wahoo, Inc. d/b/a Morton's Seafood
Restaurant & Catering and Great
Central Insurance Company a/k/a
Argonaut Great Central
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
McCLENDON, J.
In this slip-and-fall case, the plaintiff appeals a trial court judgment that granted the defendants' motion for summary judgment and granted defendants' motion to assess a fee and costs. For the reasons that follow, we reverse in part and affirm in part.
FACTUAL AND PROCEDURAL HISTORY
The plaintiff, Peggie Hunter, filed suit for injuries she sustained when she slipped and fell on a ramp while exiting the restaurant owned and operated by the defendant, Wahoo, Inc., d/b/a Morton's Seafood & Catering (Morton's), and insured by the defendant, Great Central Insurance Company. The incident occurred on the evening of March 10, 2006, when Ms. Hunter and her husband went to Morton's for dinner. After waiting outside, their table was called and they entered the restaurant and were seated. After placing her order, Ms. Hunter got up to go outside and join her husband in smoking a cigarette. Ms. Hunter had a beer in one hand and her cigarette case in the other when she leaned on the door to exit the restaurant and fell while stepping out on the ramp. Ms. Hunter alleged that as a result of the fail she suffered not only an aggravation to her pre-existing neck and back problems, but also sustained new injuries necessitating neck and back surgery.
After answering the petition for damages, the defendants filed a motion for summary judgment, asserting that there was no genuine issue of material fact as to whether the ramp was unreasonably dangerous and as to whether Morton's had any prior notice of the ramp's dangerous condition. The defendants also filed a Motion to Tax Costs and Fee to Plaintiff, in which they sought to recover the court costs incurred by the defendants due to the continuance of the trial at Ms. Hunter's request, scheduled for October 28, 2013, and the $500.00 fee due for Ms. Hunter's failure to appear for her independent medical examination scheduled for June 28, 2013. Both matters were heard and granted on February 18, 2014. A judgment was signed on March 6, 2014, granting the motion to assess fees and costs and ordering Ms. Hunter to pay the defendants $1,768.42; and granting the motion for summary judgment and dismissing all claims of Ms. Hunter in their entirety, with prejudice.
The trial court had previously granted a partial motion for summary judgment, dismissing Ms. Hunter's claim regarding the existence of a foreign substance on the ramp. That issue is not before the court on appeal.
Ms. Hunter has appealed the judgment, assigning the following as error:
1. The trial court erred in finding that there was no genuine issue of material fact that the affidavits submitted by the defendants supported their argument that they had no prior notice that the ramp was not slip resistant.
2. The trial court erred in finding that there was no genuine issue of material fact as to whether the deposition testimony of plaintiff's expert supported defendants' position and whether the ramp was unreasonably dangerous.
3. The judgment ordering plaintiff to pay defendants the costs in the amount of $1,768.42 is moot.
LAW AND DISCUSSION
Summary Judgment
In her appeal, Ms. Hunter contends that summary judgment was improperly granted in this matter because genuine issues of material fact exist that preclude summary judgment. Specifically, she contends that despite the submission of the defendants' affidavits in support of the motion, the issue of Morton's constructive notice remains, as does the issue of the credibility of the claims in the affidavits. Ms. Hunter also maintains that the trial court wrongly deferred to the findings of the defendants' expert, as opposed to the findings of her own expert, regarding whether the ramp at issue is unreasonably dangerous.
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 ail or part of the relief prayed for by a litigant. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La.App. 1 Or. 9/10/10), 47 So.3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So.3d 387. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the movant is entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966B(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. 966C(2).
When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967B.
An issue is "genuine" if reasonable persons could disagree. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. A fact is "material" when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable substantive theory of recovery. Haydel v. State Farm Ins. Co., 05-0701 (La.App. 1 Cir. 3/24/06), 934 So,2d 726, 728.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the district court's determination of whether summary judgment is appropriate. Green v. State Farm Mut. Auto Ins. Co., 07-0094 (La.App. 1 Cir. 11/2/07), 978 So.2d 912, 914, writ denied, 08-0074 (La. 3/7/08). 977 So.2d 917. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Christakis v. Clipper Construction, L.L.C., 12-1638 (La.App. 1 Cir. 4/26/13), 117 So.3d 168, 170, writ denied, 13-1913 (La. 11/8/13), 125 So.3d 454.
Louisiana Civil Code article 2317 provides, in relevant part, that "[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody." Louisiana Civil Code article 2322 specifically modifies liability under Article 2317 with respect to the owner of a ruinous building or a defective component part of that building. Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La. 4/5/13), 113 So.3d 175, 182. Article 2322 provides, in pertinent part:
The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
Under Article 2322, a plaintiff must prove the following elements to hold the owner of a building liable for the damages caused by the building's ruin or a defective component: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation. Additionally, our jurisprudence requires that the ruinous building or its defective component part create an unreasonable risk of harm. Broussard, 113 So.3d at 182-83.
In moving for summary judgment, the defendants pointed out that Ms. Hunter would be unable to prove that Morton's front ramp was unreasonably dangerous or that it knew or should have known of the allegedly defective condition of the ramp. In support of their motion, the defendants submitted excerpts from the depositions of Ms. Hunter; Ms. Hunter's expert, Philip Beard; the restaurant's original owner, Morton Davis; the current owner, Mr. Davis's niece, Dawn Davis; Morton's genera! manager, Trent Anthony; a Morton's employee, Cecelia Martin; and the defendants' expert and mechanical engineer, Fred Vanderbrook. They also submitted the affidavits of Ms. Davis and of Mr. Anthony, as well as a photograph of the sign in front of the restaurant.
Ms. Hunter testified that she had a cigarette case in one hand and her glass of beer in the other when she leaned against the door with her right shoulder to exit the restaurant. She stated that as she stepped out, her foot went out from under her and she fell on the concrete ramp. Mr. Beard testified in his deposition and Ms. Davis stated in her affidavit that the door is hinged on the left.
Mr. Davis testified that he started Morton's in 1985 in a location that previously housed a bar. He stated that among the first renovations he made to the property in 1985 was to install the concrete front ramp to the restaurant. Mr. Davis testified that in 2002, he sold the business to his niece, Dawn Davis, and that until 2002, he did not remember anyone falling on the ramp and complaining about having fallen.
Ms. Davis testified that she has been involved in the ownership and operation of the restaurant since 1991 and that since that time, no one except Ms. Hunter has fallen on the ramp or complained about any problems with the ramp. Ms. Davis also stated that at the top of the ramp, at patrons' eye level, is a sign that says, "Please watch your step and use handrails." Ms. Davis further testified that Morton's serves approximately 250 patrons per weekday and 300 or more patrons per weekend and that almost all of the patrons use the front ramp to enter and exit.
Ms. Davis testified that her uncle sold to her a 50% interest in the property in 1991 and that she purchased the remaining 50% interest in 1998.
Mr. Anthony, as general manager, oversaw the day-to-day operations of Morton's. He testified that the front ramp is constructed of concrete with a rough finish. He stated that a mat is used on the ramp to make it look better, but that it works perfectly fine without the mat. Mr. Anthony also confirmed the existence of the sign outside of the restaurant and noted that during the fourteen years he worked at Morton's, Ms. Hunter was the only person to have fallen on the ramp or complained about the ramp.
Ms. Martin was an employee at Morton's for ten years and waited on the table that included Ms. Hunter on the date Ms. Hunter fell. Ms. Martin testified that during her employment, Ms. Hunter was the only person who complained about falling on the ramp.
Mr. Vanderbrook inspected the ramp and rendered an opinion regarding same. He testified that although the accident occurred in 2006 and he inspected the ramp in 2013, he did not think that the surface had changed dramatically during that time, despite close to 70,000 patrons a year entering and exiting the premises. He further stated that although the slope of the ramp is slightly steeper than current codes permit, the slope was allowable for the existing ramp. He testified that a coefficient of friction of .50 or above is considered slip resistant and that the ramp when tested had a reasonably high coefficient of friction of .62 to .82.
Mr. Vanderbrook testified that standard rough concrete, such as a city sidewalk, typically measures a coefficient of friction between .65 and .75.
Mr. Vanderbrook also discussed other possible explanations for the fall, including the type of shoes Ms. Hunter was wearing and her distraction by the objects in her hands when she opened the door, noting that she was in an awkward position. It was Mr. Vanderbrook's opinion, considering that over one million people had used the ramp without one reported incident, that the ramp was not unreasonably dangerous, but rather there may have been a problem with the way Ms. Hunter used the ramp.
Mr. Vanderbrook also commented on the availability of a handicap accessible ramp adjacent to the building as a viable alternative to persons with mobility problems.
In opposition to the motion for summary judgment, Ms. Hunter submitted excerpts from her deposition and from the depositions of Ms. Davis, Mr. Davis, Mr. Vanderbrook, and Dr. Louis Provenza. She also offered the affidavit of Mr. Beard, which included his investigative and supplemental reports and also several photographs and diagrams, and a list of emergency medical service (EMS) incidents at the location of the restaurant.
Ms. Hunter contends that Ms. Davis's testimony that no one had ever slipped in the restaurant was contradicted by public records showing otherwise. She also points to Mr. Davis's deposition testimony that he added a mat to the ramp to "give it more traction and look nicer." Further, Ms. Hunter asserts that Ms. Davis knew that the ramp had issues with slip resistance evidenced by Ms. Davis's testimony that the mat is put at the top of the ramp, but that as people walk over it, the mat moves down. Ms. Hunter also points out that both experts found the slope of the ramp too steep according to current codes and that her expert also found multiple other violations. Specifically, Mr. Beard found a lack of a substantial level area on both sides of the door swing, a lack of proper slip resistance on the ramp surface, and a lack of proper maintenance.
We note that the public records in question do not identify any falls on the ramp.
In granting the motion for summary judgment, the district court found in its reasons that Ms. Hunter failed to establish that Morton's had actual or constructive knowledge of the existence of an unreasonably dangerous condition. The district court also found that Ms. Hunter did not show that the ramp was unreasonably dangerous. The court found that Mr. Beard did not test the slip resistance of the ramp when he inspected it and that Mr. Vanderbrook did perform slip-resistance testing, finding that the ramp was slip resistant.
Although Ms. Hunter asserts that the issue of constructive knowledge remained, the district court stated that besides having a lack of actual notice, Morton's "had no reason to have knowledge of the allegedly defective or unreasonably dangerous condition."
Upon our own de novo review of the record, we conclude that the defendants pointed out that there was an absence of support for essential elements of Ms. Hunter's claim. In response, the evidence presented by Ms. Hunter failed to establish that Morton's knew or should have known that the ramp was not slip resistant. The ramp has been in use since 1985, and this is the only reported fall on the ramp. No evidence was presented of any previous falls on the ramp or complaints regarding the ramp. Additionally, the uncontradicted testimony of Ms. Davis established that the ramp is a high-traffic area, as the restaurant serves approximately 250 patrons on a weekday and 300 patrons on a weekend day, almost all of whom use the ramp to enter and exit the building. Accordingly, we find that Ms. Hunter failed to establish that she would be able to satisfy her evidentiary burden of proof at trial and find that summary judgment in favor of the defendants was appropriate.
Having found that Ms. Hunter failed to establish that Morton's knew or should have known of the condition of the ramp, we need not address her argument that the ramp was unreasonably dangerous.
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Motion to Assess Costs and Fee
Ms. Hunter also contends that that the judgment ordering her to pay the defendants costs and fees in the amount of $1,768.42 is moot as there is no longer a basis for the sum owed. She maintains that because the trial was dismissed, the defendants no longer have to pay the $1,768.42 amount. The defendants, however, respond that the continuance of the trial, at Ms. Hunter's request, caused them to incur $1,268.42 in court costs. The defendants argue that on October 15, 2013, Ms. Hunter requested a continuance of the trial scheduled for October 28, 2013, to allow Ms. Hunter to undergo surgery. As this was a request for a second continuance, the defendants objected. The trial court granted the continuance and also ruled that Ms. Hunter was required to reimburse the defendants for any costs incurred due to the continuance. At the hearing on the motion, Ms. Hunter conceded that she owed costs attributable to her requested continuance of the trial. The record shows that, of the $1,268.42 amount, $990.52 was expended by the clerk of court in preparation of the October 28, 2013 trial. Also, $277.90 was paid to the sheriff's office for the issuance and actual service of trial subpoenas to five witnesses.
The remaining $500.00 amount was for the late fee assessed to the defendants after Ms. Hunter failed to appear at her independent medical examination. The defendants have submitted correspondence confirming the scheduling of the exam that noted the possibility of a non-appearance fee should Ms. Hunter fail to appear and a bill confirming the $500.00 late fee. However, the record is devoid of any evidence regarding a court-ordered independent medical examination. See LSA-C.C.P. arts. 1464 and 1471. See also Vaughn v. Commercial Union Ins. Co. of New York, 263 So.2d 50, 55 (La.App 4 Cir), writ denied, 266 So.2d 425 (La. 1972). Accordingly, we reverse the award of the $500.00 fee, but find no error by the trial court in assessing the $1,268.42 in court costs to Ms. Hunter.
CONCLUSION
For the above reasons, the March 6, 2014 judgment of the trial court is reversed insofar as it awarded a non-appearance fee of $500.00 to the defendants, and we reduce the amount awarded to $1,268.42. In all other respects, the judgment is affirmed. Costs of this appeal are assessed seventy-five percent to Peggie Hunter and twenty-five percent to Wahoo, Inc., d/b/a Morton's Seafood & Catering, and Great Central Insurance Company.
REVERSED IN PART AND AFFIRMED IN PART.