Opinion
NO. 2016 CA 0718
02-17-2017
HAMIDOU A. SAWANE v. MELROSE EAST II, LLC, D/B/A BON CARRE COURT APARTMENTS
Sacha S. Tessier Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Hamidou A. Sawane Craig D. Gremillion William H. Justice Baton Rouge, Louisiana Counsel for Defendant/Appellee Melrose East II, LLC, d/b/a/ Bon Carre Court Apartments
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Case No. C636555 The Honorable Janice Clark, Judge Presiding Sacha S. Tessier
Baton Rouge, Louisiana Counsel for Plaintiff/Appellant
Hamidou A. Sawane Craig D. Gremillion
William H. Justice
Baton Rouge, Louisiana Counsel for Defendant/Appellee
Melrose East II, LLC, d/b/a/
Bon Carre Court Apartments BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. THERIOT, J.
Plaintiff-appellant, Hamidou A. Sawane, appeals the granting of a motion for summary judgment granted in favor of the defendant/appellee, Melrose East II, LLC d/b/a Bon Carre Court Apartments ("Melrose") by the Nineteenth Judicial District Court. The appellee has also requested appeal costs and sanctions for frivolous appeal to be assessed against the appellant. For the following reasons, we decline to award damages for frivolous appeal and affirm the summary judgment.
FACTS AND PROCEDURAL HISTORY
On January 25, 2014, Mr. Sawane was a tenant at Bon Carre Court Apartments in Baton Rouge. That morning, Mr. Sawane exited his apartment on the second floor of the complex and walked toward the stairwell. As he attempted to go down the stairwell, he allegedly slipped on a patch of ice that he claimed was hidden on the top step. Mr. Sawane allegedly slid down sixteen steps after slipping on the ice, sustaining injuries.
Mr. Sawane filed a petition for damages to recover for his injuries. In the petition, Mr. Sawane claims that Melrose failed to keep the property properly maintained, failed to keep the stairwell in a safe condition, and failed to provide adequate warning of a dangerous condition. Melrose subsequently filed a motion for summary judgment. In its memorandum in support, Melrose claimed that due to the extremely cold weather at the time of the accident, icy surfaces were to be expected. Melrose further claimed that Mr. Sawane admitted in his deposition that he was aware of the icy conditions and even encountered icy patches on the walkway between the stairwell and the door to his apartment. Melrose claimed that the ice was an "open and obvious" hazard for which it could not be held liable.
In his memorandum in opposition to the motion for summary judgment, Mr. Sawane made the argument for the first time that the apartment building itself was defective in its construction, that it was not the ice but the staircase not being covered and exposed to the elements that created the hazardous condition. This claim was not made in the original petition for damages, and the original petition was never amended to include such a claim.
The judgment granting Melrose's motion for summary judgment was signed on January 21, 2016, dismissing Mr. Sawane's petition with prejudice. While no written reasons for judgment were issued, the district court did provide brief oral reasons in open court:
It appears to this court that it is not—there [are] no genuine issues of material fact regarding whether or not there was a vice or defect in the building of the construction of the stairwell and whether or not a duty is owed by the landowner to remove ice which he may or may not have prior notice of on a particular step. ... It appears to this court that there was no duty to do that.
Mr. Sawane now appeals. In its answer to the appeal, Melrose claims that the appeal is frivolous and requests appeal costs and sanctions against Mr. Sawane for filing a frivolous appeal.
ASSIGNMENTS OF ERROR
Mr. Sawane alleges two assignments of error:
1. The district court erred in finding there were no genuine issues of fact as to the defective construction of the building.
2. The district court erred in finding there were no genuine issues of fact as to Melrose's duty toward Mr. Sawane.
FRIVOLOUS APPEAL
This Court is authorized under Louisiana Code of Civil Procedure article 2164 to award damages, including attorney fees, for a frivolous appeal, and may tax costs. However, appeals are favored and, unless the appeal is unquestionably frivolous, damages will not be allowed. Hampton v. Greenfield, 618 So.2d 859, 862 (La. 1993). For this Court to award damages for frivolous appeal, there must be no serious legal question, or the appeal must have been taken solely for the purpose of delay, or it must be evident that the appellant's counsel does not seriously believe in the position he or she advocates. Lane Memorial Hosp. v. Gay, 2003-0701 (La. App. 1 Cir. 2/23/04), 873 So.2d 682, 687.
In the instant case, Mr. Sawane raised one cause of action in his petition for damages: that Melrose failed in its duty of care toward him as a tenant of its apartment complex. Later, in his memorandum in opposition, he raised an entirely new claim: that the apartment complex owned by Melrose was defective in its construction. Where the petition speaks generally to Melrose's failure to maintain its property in a safe condition and a failure to warn against hazards, the claim in the memorandum specifically cites Louisiana Civil Code article 2322 and borrows the phrase "original construction" from the article.
Louisiana Civil Code art. 2322 states, 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.
A civil action commences when a petition is filed in a court of competent jurisdiction. La. C.C.P. art. 421; de la Vergne v. de la Vergne, 479 So.2d 549, 550 (La. App. 1 Cir. 1985). Since Mr. Sawane's La. C.C. art. 2322 claim was never included in his original petition, that claim was never properly brought before the district court; nevertheless, the district court considered that claim in its oral reasons. Mr. Sawane subsequently included this improper claim in his first assignment of error. Since that claim was not properly before the district court and not properly brought before this Court, we will not consider it; however, we do not find the appeal to be frivolous, since the second assignment of error is based on the claim of the original petition. We find the second assignment of error raises a serious legal question and is not frivolous, and we decline to award damages in this case.
STANDARD OF REVIEW
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration over whether summary judgment is appropriate. Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La. 7/10/06), 935 So.2d 669, 686. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record shows 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 966(B) ; Neighbors Federal Credit Union v. Anderson, 2015-1020 (La. App. 1 Cir. 6/3/16), 196 So.3d 727, 733-734.
Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3. --------
DISCUSSION
The deposition of Mr. Sawane, newspaper articles reflecting the weather conditions on the date of the accident, and photographs of the apartment complex were submitted pursuant to the hearing on the motion for summary judgment. In the deposition, it is indicated that management staff of the apartment complex distributed flyers to the tenants warning about slick walkways and stairs due to freezing rain, but Mr. Sawane denied ever receiving such a warning. When presented a photograph of the stairway outside his apartment on which he slipped, Mr. Sawane was asked to circle with a pen exactly where he lost his footing. He circled an area near the railing at the top of the stairs. What he called the "first step" is actually the edge of the walkway leading down to the first step of the stairwell. Mr. Sawane stated that he saw ice on the walkway before the stairs, where there was no overhead covering, and that the point at which he slipped on the top of the stairs was not covered. Mr. Sawane testified he walked across the icy walkway "with no problem." At the moment he slipped, his right hand was gripping the rail, and his left hand held a cup of tea. His right foot slipped out from under him at the topmost part of the stairs, before he could make any steps downward.
The photographs and the testimony illustrate that Mr. Sawane had slipped before he had taken any steps downward in the stairwell. What he indicated as the "first step" is on the same plane as the walkway, and he acknowledged that he was aware of ice on the walkway and walked across it. If Mr. Sawane was aware of ice on the walkway due to it being an uncovered area, he should have also been aware of the possibility of ice on the uncovered portion of the walkway just before the stairwell. Mr. Sawane also testified that he was familiar with icy surfaces before the accident because he had lived in New York City for one year.
The consistent theme of the Louisiana Supreme Court's "open and obvious" jurisprudence is that if the complained-of condition should be obvious to all, then it may not be unreasonably dangerous. Broussard v. State ex rel. Office of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 188; See Pitre v. Louisiana Tech University, 95-1466 (La. 5/10/96), 673 So.2d 585, 591-592 (light poles in the area where college students were sledding were visible to everyone and thus, open and obvious); See also Oster v. Dep't of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La. 1991) (ditch on shoulder of road readily discernable from a considerable distance and thus not unreasonably dangerous). As the line of cases indicate, in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition. Broussard at 188.
In the instant case, Mr. Sawane saw ice on the walkway before reaching the stairs. He lived in an apartment complex where other people lived and would have had to traverse across the same ice as he did. We find the ice on which Mr. Sawane slipped is more part of the walkway than the stairwell, since Mr. Sawane did not have to take any downward steps before slipping. The icy condition was open and obvious, and Melrose is not liable for any harm resulting from such a condition.
DECREE
The summary judgment granted by the Nineteenth Judicial District Court in favor of the appellee, Melrose East II, LLC d/b/a Bon Carre Court Apartments and dismissing with prejudice the petition filed by the appellant, Hamidou A. Sawane, is affirmed. Damages for frivolous appeal requested by the appellee are denied. All costs of this appeal are assessed to the appellant.
AFFIRMED; ANSWER TO APPEAL DENIED.