Opinion
2022 CA 1195
04-14-2023
Shenell BERTRAND v. JEFFERSON ARMS APARTMENTS, LLC, et al.
A. Catharina Vastbinder, Nicholas J. Zeringue, Thibodaux, Louisiana, Counsel for Plaintiff/Appellant, Shenell Bertrand Jennifer L. Simmons, Jeffery B. Struckhoff, Dominic A. Ciaccio, New Orleans, Louisiana, Counsel for Defendants/Appellees, Jefferson Arms Apartments, LLC; Thibodaux Housing, LP; and Axis Insurance Company
A. Catharina Vastbinder, Nicholas J. Zeringue, Thibodaux, Louisiana, Counsel for Plaintiff/Appellant, Shenell Bertrand
Jennifer L. Simmons, Jeffery B. Struckhoff, Dominic A. Ciaccio, New Orleans, Louisiana, Counsel for Defendants/Appellees, Jefferson Arms Apartments, LLC; Thibodaux Housing, LP; and Axis Insurance Company
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
PENZATO, J.
The plaintiff appeals from a judgment granting a motion for summary judgment in favor of defendants, dismissing the plaintiff's suit with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Shenell Bertrand, filed suit against defendants, Jefferson Arms Apartments, LLC; Thibodaux Housing, LP; and Axis Insurance Company, for personal injuries allegedly sustained in a trip and fall incident at the Colonial Estates apartment complex on August 17, 2020. Ms. Bertrand was at the complex performing her job duties as a caretaker for "Ms. Boudreaux," one of the complex's tenants. Ms. Bertrand alleges that she tripped as she stepped in the area between hexagonal pavers and a concrete sidewalk near Ms. Boudreaux's apartment. During her deposition, Ms. Bertrand circled the area where she tripped: Ms. Bertrand did not "look back" after she tripped, and she answered "no" when asked, "So you're not sure how your foot got – you're not sure how you actually tripped on the walkway."
Ms. Bertrand's petition referred to Colonial Estates as "Thibodaux Housing, LP's apartment complex" and alleged that Jefferson Arms "managed the property."
In June 2022, nearly one year after suit was filed, the defendants filed a motion for summary judgment to dismiss all claims asserted by Ms. Bertrand, with prejudice. The defendants maintained that Ms. Bertrand "has not and cannot identify an unreasonably dangerous condition regarding the subject walkway or any other location on [d]efendants’ premises." They further contended that the condition of the walkway was open and obvious and was not unreasonably dangerous.
Ms. Bertrand opposed the motion and argued that the "dangerous condition of the pavers," which she claimed were "unstable and uneven," was not so "obviously dangerous" so as to constitute an open and obvious danger such that the defendants had no duty. Ms. Bertrand asserted that La. R.S. 9:3221 applies and delineates a lessor's duty when it knew or should have known of a defect in the premises. She argued that the defendants knew or should have received notice of the "defective walkway" and failed to remedy it within a reasonable time.
The trial court granted the defendants’ motion for summary judgment in September 2022 at the conclusion of the contradictory hearing. A judgment in conformity with this ruling was signed on September 8, 2022, granting the defendants’ motion for summary judgment and dismissing all claims against the defendants with prejudice. In its oral reasons for ruling, the trial court noted that the summary judgment evidence only showed that Ms. Bertrand "took a misstep and stepped off the stone." Without expressly addressing the application of La. R.S. 9:3221, the trial court concluded that the walkway was open and obvious.
Ms. Bertrand filed this appeal, asserting that the trial court failed to apply La. R.S. 9:3221, the more specific premises liability statute concerning lessors and lessees. She also asserts that the trial court erred in granting summary judgment, particularly because reasonable minds could differ regarding whether the walkway formed by pavers constituted a defective condition.
DISCUSSION
Summary Judgment Standard and Standard of Review
This court applies a de novo standard of review when considering lower court rulings on summary judgment motions. Thus, we use the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Farrell v. Circle K Stores, Inc. , 2022-00849 (La. 3/17/23), 359 So.3d 467, 471-72.
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).
The mover bears the initial burden of proof on the motion for summary judgment. La. C.C.P. art. 966(D)(4). However, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover'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 the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Once this is done, the burden shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). If the non-moving party fails to produce factual support in opposition sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, Article 966(D)(1) mandates the motion for summary judgment be granted. Flynn v. Anytime Fitness, LLC , 2022-0742 (La. App. 1st Cir. 12/29/22), 360 So.3d 860, 863-64.
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 the case. Chapman v. Haynes , 2022-0288 (La. App. 1st Cir. 9/16/22), 352 So.3d 1023, 1027.
Application of La. R.S. 9:3221
Under Louisiana law, an owner/lessor is generally liable for the condition of the leased premises. However, the Louisiana legislature enacted La. R.S. 9:3221 as an exception to this rule, which enables the lessee to assume responsibility for the condition of the premises in the lease contract. Pillow v. Roymar Ltd. Partnership , 2015-730 (La. App. 5th Cir. 6/30/16), 197 So.3d 348, 354, writ denied , 2016-1465 (La. 11/15/16), 209 So.3d 780.
Louisiana Revised Statutes 9:3221 provides:
Notwithstanding the provisions of Louisiana Civil Code Article 2699, [ ] the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.
Louisiana Civil Code Article 2699 concerning the waiver of warranty for vices or defects and is inapplicable here.
The summary judgment record is void of any evidence to establish the terms of a contract for lease with the owner of the premises wherein the lessee, presumably Ms. Boudreaux, assumed responsibility for the condition of the premises. Therefore, this statutory exception to the general law governing premise liability does not apply here.
Unreasonably Dangerous Condition
It appears that Ms. Bertrand identified the hexagonal paver walkway as the allegedly unreasonably dangerous condition. She offered the affidavit of Wendi Talbot, Ms. Boudreaux's former caretaker, who attested that, one day when she was at the apartment complex, her foot "caught one of the pavers" and that the pavers were "unstable and uneven." However, as shown in the photograph inserted above, the area marked by Ms. Bertrand during her deposition as the scene of the incident encompassed a small part of the concrete sidewalk, the edge of the pavers, and the dirt space between the two. She did not identify the purportedly "unstable and uneven" hexagonal paver walkway as the area where she fell.
The deposition testimony of Gregory Garrett, the apartment's maintenance supervisor, is the only evidence offered by Ms. Bertrand concerning the space between the hexagonal pavers and the concrete sidewalk. During his deposition, Mr. Garrett was asked, "Is it fair to say that you would not have left the walkway in question in the condition that's shown on all the photographs...." In response, Mr. Garrett testified, "I probably wouldn't have. If I went that far, I would have finished it. But, you know, like I say, I didn't – I passed by it 700 times and didn't see it as an issue, I guess, you know, until someone fell." This evidence does not support Ms. Bertrand's argument that "there was at least some doubt as to whether the condition of the walkway presented a defective condition."
Mr. Garrett did not recall the area at issue appearing as it did in the photographs shown to him, which reflected the space between the hexagonal pavers and the concrete walkway. On this issue, he was asked, " If the condition was as shown in all of the photographs...." (Emphasis added.)
To the extent either the hexagonal pavers or the space between the pavers and the concrete sidewalk is the complained-of condition, the summary judgment evidence establishes that "reasonable minds could only agree that the condition was not unreasonably dangerous." Farrell , 359 So.3d at 478.
The Louisiana Supreme Court recently examined its prior jurisprudence concerning unreasonably dangerous conditions and, particularly, the "open and obvious" standard. Farrell , 359 So.3d 467. Finding Farrell to be controlling, we apply the Supreme Court's analysis to the present case.
Louisiana Civil Code art. 2315 provides: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Louisiana Civil Code art. 2317.1 defines the basis for delictual liability for defective things and provides:
The owner or custodian of a thing is answerable for damage 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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
4 5 Whether a claim arises in negligence under Article 2315 or in premises liability under Article 2317.1, the traditional duty/risk analysis is the same and is used to determine whether liability exists. Farrell , 359 So.3d at 472-73. Under the duty/risk analysis, the plaintiff must prove five elements: (1) the defendant had a duty to conform his conduct to a specific standard; (2) the defendant's conduct failed to conform to the appropriate standard; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and, (5) proof of actual damages. If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. Id.
Additionally, a claim under Article 2317.1 requires proof that the defendant had actual or constructive knowledge of the defect. Farrell , 359 So.3d at 472-73. Here, the issue presented in the defendants’ motion is whether the property had a condition that created an unreasonable risk of harm. Therefore, Ms. Bertrand's focus on the defendants’ knowledge is misplaced.
For liability to attach under La. C.C. art. 2317.1, the plaintiff has the burden of proving: (1) the property that caused the damage was in the custody of the defendant; (2) the property had a condition that created an unreasonable risk of harm; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Batiste v. Erin Covington, LP , 2019-0261 (La. App. 1st Cir. 12/11/19), 291 So.3d 710, 714-15.
8 DUTY. The existence of a duty is a question of law. There is, with limited exception, the duty to exercise reasonable care and to keep that which is within our custody free from an unreasonable risk of harm. See La. C.C. arts. 2315, 2317, and 2317.1. The owner or custodian must discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of the existence. Farrell , 359 So.3d at 473-74.
In Farrell , the Supreme Court recognized the uncertainty and confusion stemming from its prior jurisprudence, which, at times, considered the question of whether a condition was open and obvious as part of the duty element and, at other times, considered this to be part of the breach element of the duty/risk analysis. Farrell , 359 So.3d at 474-76, discussing Broussard v. State ex rel. Office of State Buildings , 2012-1238 (La. 4/5/13), 113 So.3d 175 ; Bufkin v. Felipe's Louisiana, LLC , 2014-0288 (La. 10/15/14), 171 So.3d 851 ; and Allen v. Lockwood , 2014-1724 (La. 2/13/15), 156 So.3d 650, 651. After analyzing the issue, the Court concluded that whether a condition was open and obvious is embraced within the breach of the duty element of the duty/risk analysis, not the duty element. This inquiry is "not a consideration for determining the legal question of the existence of a duty." Farrell , 359 So.3d at 478. "[I]t is inaccurate to profess that a defendant generally does not have a duty to protect against an open an obvious condition." Id.
Thus, the defendants owed a duty to Ms. Bertrand to exercise reasonable care to keep the premises free from an unreasonable risk of harm, to discover any unreasonably dangerous condition on the premises, and to correct the condition or warn potential victims of the existence. See Farrell , 359 So.3d at 473-74. Pursuant to Farrell, we consider whether the complained-of condition – either the hexagonal pavers or the space between the pavers and the sidewalk – was open and obvious in connection with the breach element of the duty/risk analysis.
BREACH. Whether there was a breach of the duty owed is a question of fact or a mixed question of law and fact. Nevertheless, Farrell made it clear that summary judgment, based on the absence of liability, may be granted upon a finding that reasonable minds could only agree that the condition was not unreasonably dangerous; therefore, the defendant did not breach the duty owed. In such instance, the plaintiff would be unable to prove the breach element at trial. Farrell , 359 So.3d at 478-79, 479-80 (granting summary judgment in favor of the defendant premises owner upon concluding that the complained-of condition was not unreasonably dangerous).
12 Courts have adopted a risk/utility balancing test to determine whether a condition was unreasonably dangerous. This test considers: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous by nature. Farrell , 359 So.3d at 473-74 ; Bufkin , 171 So.3d at 856. If the application of the risk/utility balancing test results in a determination that the complained of hazard is not an unreasonably dangerous condition, a defendant is not liable because there was no duty breached. Farrell , 359 So.3d at 478.
The Supreme Court in Farrell concluded that the inquiry into whether a condition was open and obvious falls within the ambit of the second factor of the risk/utility balancing test. Id.
Utility of the Complained of Condition
If the condition at issue was "meant to be there," it often will have social utility, and in the balancing test, weigh against a finding that the premises was unsafe. Farrell , 359 So.3d at 478. Here, it is undisputed that the hexagonal pavers were intentionally placed in the subject area, although there is conflicting evidence concerning who placed them. In her affidavit, Ms. Sherryl Trosclair, a former tenant of Colonial Estates, attested that she placed the pavers to cover an area that became become muddy when it rained. However, Mr. Garrett testified that the previous maintenance supervisor placed the pavers. There is no evidence to establish why a gap existed between the hexagonal pavers and the concrete sidewalk.
Likelihood and Magnitude of the Harm, including the Obviousness and Apparentness of the Condition
The Louisiana Supreme Court was clear that Farrell "does not change the basic premise of open and obvious. For a hazard to be considered open and obvious, it must be one that is open and obvious to all who may encounter it." Farrell , 359 So.3d at 478. 15 The photographs attached to Ms. Bertrand's deposition transcript, which she identified and discussed during her deposition, show that each area – the walkway of hexagonal pavers, the concrete sidewalk, and the space between where Ms. Bertrand fell – is visibly distinct and readily apparent to all who encounter the walkway. Ms. Bertrand also attached a video of the premises to Ms. Trosclair's affidavit. The video depicts the area in color and plainly shows that the hexagonal pavers are red/orange, the sidewalk is gray concrete, and the space between the pavers and the sidewalk is brown dirt. Still images from the video of the premises show that nothing camouflaged the area at issue, and the hexagonal pavers were readily apparent, as was the gap between the sidewalk and the pavers:
Ms. Bertrand cites Ferguson v. American Empire Surplus Lines Ins. Co. , 2019-0061 (La. App. 4th Cir. 5/22/19), 273 So.3d 406, 411, to support her assertion that the rule of comparative fault applies unless the condition presents "such an extreme situation of totally one-sided fault." In Ferguson, the Fourth Circuit found the defendants failed to establish that the slope of a roof was open and obvious and not unreasonably dangerous where they failed to prove ‘ "beyond the point of a ‘genuine issue of material fact’ that an extreme situation of totally one-sided fault of the plaintiff exists’." "Only in the exceptional case of extremely obvious danger will the defendant be found to have no duty at all to warn of or remedy the danger." Ferguson , 273 So.3d at 411, quoting DeStevens v. Harsco Corp. , 94-1183 (La. App. 4th Cir. 3/16/95), 652 So.2d 1054, 1058 ( citing Socorro v. City of New Orleans , 579 So.2d 931 (La. 1991) ). This standard of "open and obvious" is not supported by recent precedent from the Louisiana Supreme Court or this court, cited above, and we decline to apply it.
Defendants’ Exhibit B is an unauthenticated photo purportedly taken by counsel. Although Ms. Bertrand did not object to this exhibit, we find it is not proper summary judgment evidence and has no evidentiary value. See La. C.C.P. art. 966(A)(4). Thus, we decline to consider it. See Velocity Investments, LLC v. Pasqua , 2022-0626 (La. App. 1st Cir. 1/10/23), 361 So.3d 23, 27-28 n.6.
Ms. Bertrand does not allege that the height differential of the concrete sidewalk or the hexagonal pavers created a tripping hazard or unreasonable risk of harm, and she offered no evidence to establish same.
See Cordell v. Tanaka, LLC, 2017-0285 (La. App. 1st Cir. 1/4/18), (unpublished) 2018 WL 301331, *5, writ denied , 2018-0235 (La. 4/6/18), 239 So.3d 827 (affirming summary judgment in the defendants’ favor, finding the ledge involved in the plaintiff's trip/fall was an open and obvious condition. The ledge was "made more noticeable by the color deviation between the upper-part of the ledge and the lower-part of the ledge.") See also Primeaux v. Best Western Plus Houma Inn , 2018-0841 (La. App. 1st Cir. 2/28/19), 274 So.3d 20, 29 (affirming summary judgment in the defendants’ favor, finding the curb involved in the plaintiff's fall was open and obvious where the record evidence showed the portion of the curb visible to pedestrians entering the hotel was "clearly painted yellow" and the immediately adjacent surfaces were different shades of gray).
Cordell and Primeaux were decided before Farrell and noted, "Generally, a defendant does not have a duty to protect against an open and obvious hazard." Primeaux , 274 So.3d at 28 ; Cordell , 2018 WL 301331 at *5. Although Farrell now makes it clear that the "open and obvious" analysis is not part of the duty determination, these cases remain applicable insofar as they held that the conditions at issue were "open and obvious" because they were visible to everyone who potentially encountered them. As recognized in Farrell, this remains the "open and obvious standard." Farrell , 359 So.3d at 478.
17 There is no allegation or evidence of an optical illusion or any other reason that Ms. Bertrand was unable to see the hexagonal pavers or the space between the pavers and the concrete sidewalk. The images from the video, inserted above, belie any assertion to the contrary. See Williams v. Liberty Mutual Fire Ins. Co. , 2016-0996 (La. App. 1st Cir. 3/13/17), 217 So.3d 421, 427, writ denied , 2017-0624 (La. 6/5/17), 219 So.3d 338 ; Primeaux , 274 So.3d at 29 (noting the area was clear of debris and nothing blocked the plaintiff's view of the yellow curb prior to his fall.) An accident alone does not support the imposition of liability, particularly considering the normal hazards pedestrians face while traversing sidewalks and parking lots in this state. A pedestrian has a duty to see what should be seen and is bound to observe his course to see if his pathway is clear. Williams, 217 So.3d at 427.
Cost of Preventing the Harm
The record is void of any evidence concerning the cost of preventing the harm. Therefore, we are unable to consider this factor in applying the risk/utility balancing test. See Farrell , ––– So.3d at ––––, 2023 WL 2550503 at *8.
Nature of Plaintiff's Activities in Terms of Social Utility or Whether the Activities were Dangerous by Nature
The fourth and final factor of the risk/utility balancing test considers the nature of the plaintiff's activity in terms of social utility or whether the activities were dangerous by nature. In this case, Ms. Bertrand was walking from Ms. Boudreaux's apartment toward the mailbox when she tripped. While the social utility of this activity may be important and it is not dangerous in nature, it does not weigh heavily as a consideration in determining an unreasonably dangerous condition. See Farrell , 359 So.3d at 478.
Thus, we find the risk/utility balancing test demonstrates that the complained-of condition(s) on the defendants’ premises were not unreasonably dangerous, and the defendants did not breach a duty owed to Ms. Bertrand. The defendants satisfied their summary judgment burden of proving the absence of factual support for one or more elements of Ms. Bertrand's burden of proof. La. C.C.P. art. 966(D)(1). The summary judgment burden then shifted to Ms. Bertrand, who failed to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the defendants are not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). Thus, the defendants’ motion for summary judgment was properly granted.
In brief to this court, Ms. Bertrand asserts that she should be allowed to procure expert testimony to assist the factfinder in determining whether the walkway presented a defective condition. However, Ms. Bertrand did not file a motion to continue with the trial court, and there is no absolute right to delay action on a motion for summary judgment until discovery is complete. Rather, the requirement is only that the parties have a fair opportunity to carry out discovery and to present their claim. La. C.C.P. art. 966(A)(3) ; Campbell v. Dolgencorp, LLC, 2019-0036 (La. App. 1st Cir. 1/9/20), 294 So.3d 522, 527.
Given our ruling that the defendants did not breach a duty owed to Ms. Bertrand, we pretermit any further discussion of the cause-in-fact, scope of the duty, and damages elements of the duty/risk analysis.
CONCLUSION
For the forgoing reasons, we affirm the September 8, 2022 judgment granting the motion for summary judgment filed by Jefferson Arms Apartments, LLC; Thibodaux Housing, LP; and Axis Insurance Company and dismissing all claims against them, with prejudice. All costs of this appeal are assessed against Shenell Bertrand.
AFFIRMED.