Under either theory of liability, a plaintiff must prove that: “(1) the defendant either owned or had care, custody, or control of the thing in question; (2) the thing was a cause-in-fact of the plaintiff's injuries; and (3) the thing presented an unreasonable risk of harm.” Llorence v. Broadmoor Shopping Ctr., Inc., 76 So.3d 134, 137 (La.App. 3 Cir. 2001) (quoting Bethea v. Great Atl. & Pac. Tea Co., 22 So.3d 1114, 1115 (La.App. 4 Cir. 2009)). Here, defendant argues that plaintiff cannot establish a genuine issue of material fact as to whether the sprinkler head created an unreasonable risk of harm, because the sprinkler was “open and obvious.”
“Under either theory of liability, a plaintiff must prove: ‘(1) the defendant either owned or had care, custody, or control of the thing in question; (2) the thing was a cause-in-fact of the plaintiff's injuries; and (3) the thing presented an unreasonable risk of harm.' ” Id. (quoting Llorence v. Broadmoor Shopping Ctr., Inc., 76 So.3d 134, 137 (La. Ct. App. 2001)). Having carefully considered the matter, the Court finds that Sam's is entitled to summary judgment.
Under either theory of liability, a plaintiff must prove: "(1) the defendant either owned or had care, custody, or control of the thing in question; (2) the thing was a cause-in-fact of the plaintiff's injuries; and (3) the thing presented an unreasonable risk of harm." Llorence v. Broadmoor Shopping Ctr., Inc., 76 So. 3d 134, 137 (La. Ct. App. 2001) (quoting Bethea v. Great Atl. & Pac. Tea Co., 22 So. 3d 1114, 1115 (La. Ct. App. 2009); Summerville v. La. Nursery Outlet, Inc., 676 So. 2d 238, 240 (La. Ct. App. 1996). Defendant concedes that it had custody of the parking lot in question, but argues that plaintiff cannot establish a genuine issue of material fact as to whether the depression in the parking lot created an unreasonable risk of harm or whether Sam's Club had constructive knowledge of the defect.
Under Article 2317.1, a plaintiff must prove that: (1) the defendant either owned or had care, custody, or control of the thing in question; (2) the thing was a cause-in-fact of the plaintiff's injuries; and (3) the thing presented an unreasonable risk of harm. Llorence v. Broadmoor Shopping Ctr., Inc., 2011-233 (La.App. 3d Cir. 10/15/11), 76 So.3d 134, 137.
The location of the deviation, right in front of the theater, is a highly trafficked area with no history of similar trip-and-fall accidents, which suggests that the likelihood and magnitude of potential harm were low. Leonard, 2013 WL 121761, at *3 (citing Llorence v. Broadmoor Shopping Ctr., Inc., 76 So.3d 134, 137 (La.App. 2001) (noting that “there had been no claims, complaints, or suits arising out of the area either before or since the plaintiff's claim” when holding that an area was not unreasonably dangerous on summary judgment)). Further, although the cost of repair of the deviation at issue might be minimal, a merchant cannot possibly guess over which expansion joint a patron might fall and “the ‘cost to eliminate all such minor defects is staggering.'”
Lowe's posits that multiple Louisiana Courts have granted summary judgment in premises liability suits where the plaintiff tripped over a minor height variance. Dowdy v. City of Monroe, 78 So.3d 791 (La.App. 2 Cir. 11/2/11); Leonard v. Parish of Jefferson, 902 So.2d 502 (La.App. 5th Cir. 4/26/05); Llorence v. Broadmoor Shopping Center, Inc. 76 So.3d 134 (La.App. 3d Cir. 10/5/11); Reitzell v. Pecanland Mall Associates, Ltd., 852 So.2d 1229 (La. App. 2d Cir. 8/20/03). Lowe's argues that it is undisputed that the photographs, deposition testimony of Plaintiff and an affidavit of a Lowe's employee, all confirm that height of the cement clumps was between one-half and one inch in height.
Though plaintiff's claims against United arise out of La. Civ. C. Art. 2317.1 and those against JGL arise out of the LPLA, both require plaintiff to produce evidence of some unreasonably dangerous condition or defect in manufacture or design that caused Young's injury and subsequent death. Llorence v. Broadmoor Shopping Center, Inc., 76 So.3d 134, 137 (La. App. 3 Cir. 2011) quotingBethea v. Great Atl. & Pac. Tea Co., 22 So.3d 1114, 1115 (La. App. 4 Cir. 2009); Stewart v. Capital Safety USA, 867 F.3d 517, 520 (5th Cir. 2017) citingStahl v. Novartis Pharm. Corp., 283 F.3d 254, 260-61 (5th Cir. 2002).
A plaintiff was previously found to not establish the unreasonable risk of harm of a parking lot pothole because he failed to present the testimony of an expert. Llorence v. Broadmoor Shopping Center, Inc. , 11-233 (La. App. 3 Cir. 10/5/11), 76 So.3d 134 ; see also , Beckham v. Jungle Gym, L.L.C. , 45-325 (La. App. 2 Cir. 5/19/10), 37 So.3d 564, 567 (expert affidavit indicated that asphalt chunks were difficult to see because their color and texture caused them to blend in with the surrounding asphalt). Furthermore, Mr. Ehlinger's opinion is helpful to the factfinder to assist in their determination of whether the condition is unreasonably dangerous.
A review of the jurisprudence reveals that the appellate courts have resolved on motions for summary judgment the issue of whether a condition presented an unreasonable risk of danger. In Llorence v. Broadmoor Shopping Center, Inc., 2011–233 (La.App. 3d Cir.10/5/11), 76 So.3d 134, the plaintiff was injured when she fell in a pothole in a shopping center parking lot. The defendant shopping center sought summary judgment urging that plaintiff could not satisfy her burden of proof at trial because she could not prove that the parking lot was defective or that her fall was the result of that condition.