Opinion
CIVIL ACTION 03-0925, SECTION "T"(2)
March 8, 2004
Before the Court is a Motion for Summary Judgment (Doc. 12) filed on behalf of the Defendant, Bank One Corporation(" Bank One"). The parties waived oral argument and the matter was taken under submission on January 28, 2004. The Court, having considered the arguments of the parties, the Court record, the law and applicable jurisprudence, is folly advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
On July 5, 2002, Lina Jones ("Ms. Jones") allegedly tripped and fell, injuring herself, as she was approaching an ATM at the Bank One in Chalmette. The plaintiff asserts that she fell because she tripped on a ledge which was located in the vicinity of the ATM machine. It is undisputed that the plaintiff saw the ledge as she was approaching it and before the alleged accident occurred. The only question, therefore, before this Court is if Bank One breached any sort of duty which it might have owed to the plaintiff.
II. LEGAL ANALYSIS:
A. Law on Summary Judgment
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "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 any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco. Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex. Inc. v. M/V RISAN 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Law on Premises Liability
Louisiana law provides two similar, but different provisions which govern premises liability in this state: Louisiana Revised Statute § 9:2800.6 ("L.R.S. § 9:2800.6"), et seq. and Louisiana Civil Code article 2317.1 ("article 2317.1"). L.R.S. § 9:2800.6 states in pertinent part that:
In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that the risk was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care.
Article 2317.1, in the alternative, states:
The owner or custodian of a thing is answerable for damages occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, 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.
C. Analysis
The plaintiff asserts that as she approached the ATM at the Bank One building in Chalmette she stepped up on what she believed to be a continuous flat surface, but what was in fact only a concrete ledge with a twelve inch drop off behind it. As she stepped up and noticed the drop off on the other side, her hesitation caused her back foot to catch the edge of the ledge, which caused her to fall forward. The plaintiff alleges that the ledge at the bank created a trip hazard and a defect because in ordinary use customers may be expected to falsely conclude that the ledge is a step with a safe flat platform behind it, rather than an obstacle with a drop off behind it.
The plaintiff admits that neither the ledge, nor the ramp alone are defective, but instead contends that the combination of the two things or the "configuration" created an inherent defect. The plaintiff also contends that in the layout and construction of the ATM area for this parking lot in this configuration, the likelihood of an accident like that of the plaintiffs should have been anticipated and simple cheap and convenient methods of avoidance undertaken. The plaintiff also alleges that although she admits to seeing the ledge, it was a reasonable assumption on her part to believe that there was a flat surface behind it rather than a drop off; i.e. seeing the ledge is different from being aware of the configuration.
Under Louisiana law, it is the plaintiffs burden to prove that under the facts alleged, the merchant/landowner violated either L.R.S. § 9:2800.6 or article 2317.1. The defense contends that the plaintiff can not carry this burden for two reasons. First, the defense alleges that they had no knowledge of the condition. Second, the ledge does not create an unreasonable risk of harm.
In order for the plaintiff to carry her burden under either L.R.S. § 9:2800.6 or article 2317.1, she must first prove that the defendant either had, or should have had some sort of knowledge of the condition which caused her injury. L.R.S. § 9:2800.6 requires the plaintiff to prove that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. In the instant action, the alleged injury was proximately caused by a ledge which was created by the defendant and under the defendant's control at the time of the accident.
Article 2317.1 requires that the plaintiff prove that the owner either knew, or in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage. For the purposes of this motion only, the Court is of the opinion that an open and obvious cement ledge that was created by the defendant and located within a matter of feet from the front door is a "Vice or defect" which the defendant should have been aware of, and as such, the knowledge required under 2317. 1 is present.
Next, the defense asserts that the ledge doesn't create an unreasonable risk of harm as required under both L.R.S. § 9:2800.6 and article 2317.1 There is no fixed rule for determining whether a thing presents an unreasonable risk of harm. Lasyone v. Kansas City S. R.R., 200-2628 (La. 4/3/01), 786 So.2d 682, 693. To assist the trier-of-fact, we note that many factors are considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; (6) the societal utility involved. Id. The unreasonable risk of harm criterion is not a simple rule of law and the trier-of-fact is cautioned not to apply it mechanically. Id. The Louisiana Supreme Court has suggested that the unreasonable risk of harm criterion should serve as a guide utilized by the decision maker in balancing the likelihood and magnitude of the harm against the societal use of the thing, and that the vice or defect must be of such a nature as to constitute a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. Id at 694.
In the present case, the plaintiff tripped over a concrete ledge that had a handicapped ramp built into it with an alleged unexpected drop off of up to 12 inches from the top of the ledge to the bottom of the ramp. Pictures of the ramp and ledge were submitted to the Court by the parties. The plaintiff, while admitting that she saw the ledge, alleges that there is a defect in the construction of the ledge and the ramp. The plaintiff in all essence is simply alleging that she didn't see the drop off on the other side until it was too late, and it was the defendant's duty to do something to put her on notice of the drop off. Handicapped access ramps are located all over the city and at almost every public place of business by law. The plaintiff does not allege that the ramp itself was flawed, she in fact admits that both the ramp and the ledge as individual items were free from defect. It was simply the combination of the two that created the defect. There was nothing restricting the plaintiff from walking around the ledge and ramp and accessing the ATM from a different route. There was nothing covering or hiding the drop off. According to the plaintiffs own testimony, it wasn't even the drop off that caused the plaintiffs fall, but in fact the ledge that she already had one foot on and an apparent apprehension about the drop off. The plaintiff has failed to provide the Court any evidence which would create a material fact in this case. A prudent person using ordinary care would have seen the ledge and exercised whatever caution was necessary under those circumstances.
As stated above, the burden of proving the existence of a defect which poses an unreasonable risk of harm in an action based on L.R.S. § 9:2800.6 or article 2317.1 rests with the plaintiff. Considering all of the factors, the Court is of the opinion that the ledge does not present an unreasonable danger.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment (Doc. 12) filed on behalf of Defendant, Bank One Corporation, be and the same is hereby GRANTED.