Opinion
NUMBER 2012 CA 0283
01-25-2013
DORIS JEAN FELDERMAN, WIFE OF/AND DAVID GEORGE FELDERMAN v. EDWARD GORNAK, AUDREY LANGHAUSER GORNAK, NORTHPARK CAR WASH, INC., THE PARISH OF ST. TAMMANY, CLECO UTILITY GROUP, INC., CLECO POWER, LLC, NORTHPARK RESTAURANT, LLC, DAKOTA-CUVEE EVENTS, LLC, AND DAKOTA RESTAURANT, INC.
Stephen C. Aertker, Jr. Covington, LA Attorney for Appellants Plaintiffs - Doris Jean Felderman, wife of/and David G. Felderman Keely Y. Scott Leigh F. Groves Laura Hart Bryan Mary E. Colvin Baton Rouge, LA Attorneys for Appellees Defendants - Edward Gornak and Audrey Langhauser Gornak George P. Hebbler, Jr. Michael J. Gautier, Jr. Metairie, LA Attorneys for Appellee Defendant - Northpark Car Wash, Inc. Walter P. Reed, District Attorney Leo Hemelt, II, Assistant District Attorney Neil C. Hall, III, Assistant District Attorney Covington, LA Attorneys for Appellees Defendants - The Parish of St. Tammany and Gravity Drainage District No. 5 of the Parish of St. Tammany
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany, Louisiana
Trial Court Number 2010-13 604
Honorable William J. Knight, Judge
Stephen C. Aertker, Jr.
Covington, LA
Attorney for Appellants
Plaintiffs - Doris Jean Felderman,
wife of/and David G. Felderman
Keely Y. Scott
Leigh F. Groves
Laura Hart Bryan
Mary E. Colvin
Baton Rouge, LA
Attorneys for Appellees
Defendants - Edward Gornak
and Audrey Langhauser Gornak
George P. Hebbler, Jr.
Michael J. Gautier, Jr.
Metairie, LA
Attorneys for Appellee
Defendant - Northpark Car
Wash, Inc.
Walter P. Reed, District Attorney
Leo Hemelt, II, Assistant District Attorney
Neil C. Hall, III, Assistant District Attorney
Covington, LA
Attorneys for Appellees
Defendants - The Parish of St.
Tammany and Gravity
Drainage District No. 5 of the
Parish of St. Tammany
BEFORE: PARRO, KUHN, PETTIGREW, WELCH, AND KLINE, JJ.
Kline, J. serving as Supernumerary Judge pro tempore of the Court of Appeal, First Circuit, by special appointment of the Louisiana Supreme Court.
WELCH , J.
Plaintiffs, Doris Jean Felderman and David George Felderman, appeal summary judgments granted in favor of defendants, Northpark Car Wash, Inc., Edward Gornak, Audrey Langhauser Gornak, St. Tammany Parish, and Gravity Drainage District No. 5 of St. Tammany Parish. We reverse and remand.
BACKGROUND
On June 1, 2009, Mrs. Felderman and other family members travelled from Iowa to Covington, Louisiana, to attend a funeral. Upon arriving in Covington, Mrs. Felderman and her family checked into the Best Western Northpark Inn located along Highway 190 in Covington. Later that evening, Mrs. Felderman's brother, Kevin, drove Mrs. Felderman, her niece Kim Jochum, and other family members to a nearby Outback Steakhouse, also located along Highway 190. After finishing their meal, at approximately 9:00 p.m., Mrs. Felderman, who was sixty-two years old, and Ms. Jochum decided to walk back to the Best Western while the other family members remained at the restaurant. The ladies crossed the four lanes of Highway 190, proceeded in the direction of the hotel, and entered the parking lot of the Rainforest Car Wash. Mrs. Felderman and her niece walked across the car wash parking lot, intending to reach the Best Western by crossing the property situated between the car wash and the Best Western. Upon arriving at the end of the car wash parking lot, Mrs. Felderman encountered a curb, beyond which there was an underbrush of shrubs and other foliage. Mrs. Felderman decided to make her way through the underbrush, stepped over the curb, and immediately fell into an eight-foot-deep ditch.
Mrs. Felderman and her husband filed this lawsuit seeking damages for injuries sustained as a result of the fall against a number of defendants, including: Northpark Car Wash, Inc. (Northpark), the owner of the Rainforest Car Wash, and Northpark's lessors, Edward and Audrey Gornak; Dakota Restaurant Inc., the owner of the property adjacent to the car wash; the Parish of St. Tammany; and Cleco Utility Group, Inc. The Feldermans asserted that the defendants were at fault in the following respects: failing to keep the premises free of a defect of which they should have known in the exercise of reasonable care; failing to post adequate signs to warn pedestrians against walking in or around the dangerous area; failing to secure the area with fencing or other enclosure; failing to properly mark the curb separating the level area from the ditch; failing to maintain the area to keep it free from underbrush; and failing to keep the area well lit.
The Parish filed a peremptory exception raising the objection of nonjoinder of a party, asserting that the ditch in question is within the boundaries of the Gravity Drainage District No. 5 of St. Tammany Parish (District), a political subdivision of the state. Thereafter, the Feldermans added the District as a defendant. Dakota Restaurant, Inc., Cleco Utility Group, Inc., and all defendants related to those entities were subsequently dismissed from the litigation without prejudice.
Northpark, the Gornaks, the Parish, and the District filed motions for summary judgment. In their motions for summary judgment, Northpark and the Gornaks argued that they were entitled to judgment because they did not own, maintain, or have custody of or control over the ditch into which Mrs. Felderman fell. Rather, they insisted, the District owned and maintained the ditch and therefore, pursuant to Louisiana law, they could not be held liable for damages sustained on adjacent property. Secondly, they urged that Mrs. Felderman was a "trespasser" who was statutorily precluded from recovering for her injuries by virtue of La. R.S. 14:63, which criminalizes trespassing and immunizes owners, lessees, and custodians of immoveable property from liability for damages sustained by persons who enter immovable property without express, legal, or implied authorization, in the absence of gross negligence or intentional conduct. They posited that it was undisputed that Mrs. Felderman entered the car wash property after the business had closed, she had not been invited onto the property, and she did not have authorization to be on the property. They also pointed out that Mrs. Felderman had made no allegation of gross negligence or intentional conduct on their part.
In their motion for summary judgment, the Parish and the District asserted that the ditch did not present an unreasonable risk of harm to pedestrians such as Mrs. Felderman, particularly as to that part of the ditch not located on a pathway or where pedestrians would be expected to traverse it at night. They argued that it is obvious that neither the District nor the Parish would know, or be expected to know, that a reasonable person would trespass through the car wash parking lot and attempt to cut through the dense underbrush of the ditch at 9:00 in the evening, particularly when that person could have taken an alternate route along the shoulder of Highway 190. Secondly, the Parish argued that it did not have custody or garde over the ditch as the ditch was never placed in its inventory and is located within the boundaries of the District. Lastly, the Parish and District asserted that even assuming that one of them had custody of the ditch, pursuant to the "public duty doctrine" and La. R.S. 9:2798.1, they are immune from liability to Mrs. Felderman for her injuries. They insisted that the construction, improvement, and/or maintenance of drainage ditches is a policy-based and discretionary decision, the exercise of which is dependent upon the availability of and appropriation of funds necessary to maintain drainage.
In support of and in opposition to the motions for summary judgment, the parties introduced the depositions of Mrs. Felderman and her niece, Kim Jocum. In her deposition, Mrs. Felderman testified that on June 1, 2009, she and four relatives flew from Iowa to New Orleans to attend her brother's funeral. They rented a vehicle, drove to Covington, and checked into the Best Western Hotel, located on Highway 190. Mrs. Felderman and her relatives decided to eat dinner at a nearby Outback Steakhouse. Mrs. Felderman's brother, Kevin, drove the party to the restaurant in the rental vehicle. Mrs. Felderman estimated it took them between five to seven minutes to reach the restaurant by vehicle and that the restaurant was about a block and a half from the hotel. After visiting with their relatives and finishing dinner, Mrs. Felderman and her niece decided to walk back to the hotel to take a swim. Mrs. Felderman denied having any alcoholic beverages at the restaurant. At approximately 9:00 p.m., Mrs. Felderman and Ms. Jocum left the restaurant, walked across the parking lot, and crossed the four lanes of Highway 190. Mrs. Felderman and her niece entered the driveway of the Rainforest Car Wash, walked across the parking lot, and encountered a curb at the end of the property. Mrs. Felderman explained that she traversed the car wash parking lot because the Best Western was right on the other side of the building located between the car wash and the hotel. She acknowledged that the business was closed, there was no one on the premises, she did not ask for permission to be on the premises, and the path she took was not a designated walkway. Mrs. Felderman stated that as she walked through the parking lot, she could not see well and recalled only that the car wash sign was lit. However, she could clearly see the roof of the brown building between the car wash and the hotel as well as the curb. She described the area between the curb and the next building as being "brushy and undergrowth looking," with "lots of greenery." When asked how tall the bushes and trees in that area were, Mrs. Felderman acknowledged that they were over her head. Although Mrs. Felderman could clearly see the shrubbery on the other side of the curb, she could not see a pathway or opening in the shrubs. Mrs. Felderman decided to attempt to make her way through the underbrush, believing that she could go right across level ground to the next parking lot. Mrs. Felderman testified that while looking straight ahead, she stepped over the curb, and fell immediately into the 8-foot ditch. When asked why she did not walk on the grass or shoulder area along Highway 190 from the driveway of the car wash to the Best Western, Mrs. Felderman expressed her concern for walking so close to the cars travelling on Highway 190. Mrs. Felderman stated that she revisited the accident scene in 2011 on the day before she gave her deposition. According to Mrs. Felderman, all of the underbrush was gone, and the curb and a telephone post were painted yellow.
Ms. Jocum testified that as she and her aunt reached the curb at the rear of the Rainforest Car Wash, she saw that there was some foliage and underbrush, and also noticed that there was a building between the car wash and the hotel. They stopped at the curb and Mrs. Felderman indicated they could get through the foliage. Ms. Jocum described the foliage as "bush-like" and "dense" and stated that it was over their heads. She also stated that she believed there was solid ground under the foliage, noting that it was dark and black and looked like something they could "blunder" their way through. However, within a few seconds of arriving at the curb, Ms. Jocum turned around to search for an alternate route because she was afraid of dogs and did not know whether the building ahead was residential or commercial. Ms. Jocum took a few steps back, looked to her left, and when she looked back to where she and Mrs. Felderman had been standing, Mrs. Felderman was gone. Ms. Jocum heard moans, followed the sounds to the curb, looked down, and saw the top of Mrs. Felderman's head. Ms. Jocum testified that if it were not for her fear of dogs, she would have taken that step over the curb also.
The evidence submitted by the defendants in support of their motions also included pictures of the layout of the area in question that were utilized during the depositions of Mrs. Felderman and Ms. Jocum. In further support of their motions for summary judgment, Northpark and the Gornaks offered two affidavits and a pleading filed by the Parish. In his affidavit, Mr. Gornak made the following attestations: the drainage ditch does not provide any means of access to the property at issue; his company does not own, maintain, or have the responsibility to maintain the ditch into which Mrs. Felderman fell; he has never invited anyone to use the drainage ditch, including lessees of the property or any of the lessees' patrons; and he has never met Mrs. Felderman, did not invite her onto his property, and did not give her permission to enter his property. Mr. Silva, the regional manager of the Rainforest Car Wash, attested that on June 1, 2009, the car wash's hours of operation were from 8:00 a.m. to 6:00 p.m., and at the time of Mrs. Felderman's fall, the car wash was closed, no employees were present, and there was a sign posted indicating that the car wash was closed. He further stated that the car wash does not invite its patrons to use the ditch, the ditch does not provide any means of access to the car wash premises, and the car wash did not own, maintain, or have responsibility to maintain the drainage ditch. In a memorandum filed in support of its exceptions, the Parish maintained that the ditch in question is within the boundaries of the District.
In further support of their motion for summary judgment, the Parish and the District offered three affidavits, the St. Tammany Parish Code of Ordinances for roads and bridges and for drainage and flood control, a St. Tammany Parish ordinance accepting the St. Tammany Parish drainage inventory, a photograph of the aerial view of the area in question, and a map depicting the various gravity districts. In his affidavit, Lonnie Johnson, a crew chief employed by St. Tammany Parish's Department of Public Works, attested that the drainage ditch in question was not included in the St. Tammany Parish Drainage Inventory prior to or after Mrs. Felderman's fall. He further stated that to his knowledge, the Department of Public Works has not done any work on the ditch in question, has never erected a fence on any part of a lateral drainage ditch to prevent pedestrians from accessing the ditch, has never installed signs warning pedestrians of a ditch, and has never provided lighting for the purpose of illuminating a ditch. He added that the purpose of the ditch is to provide drainage of runoff from land areas and they are not designed, constructed, improved, or maintained for use by pedestrians, and that this is the only incident of which he is aware that a person claimed to have fallen into a ditch. Darrnell Ellingsworth, the Parish's risk manager, attested that since becoming risk manager in 2002, there has been no claim made against the Parish arising out of a person falling into a ditch. He added that a search of loss run records since 1987 revealed no claims other than Mrs. Felderman's related to falling into a ditch.
Martin Gould, Jr., the District's vice chairman, made the following attestations: the ditch in question is located within the boundaries of the District and is not included in the Parish drainage inventory; the District did not construct the ditch, nor has it improved or maintained the ditch; the District's Board of Commissioner never appropriated funds to do work on a lateral drainage ditch for the purpose of providing a means for pedestrians to cross; the District has never erected a fence on any part of a lateral drainage ditch to prevent pedestrians from accessing the ditch, has never installed signs warning of a ditch, and has never provided lighting for the specific purpose of illuminating a ditch. He added that this is the only incident of which he is aware where a person claimed to have fallen into a drainage ditch.
In opposition to the motions for summary judgment, Mrs. Felderman relied on her deposition and the deposition of her niece. In opposition to Northpark and the Gornak's motions for summary judgment, in particular, Mrs. Felderman submitted a copy of the act of sale of the car wash property from North Shore Shell Car Wash, Inc. to the Gornaks in 1993, which referenced an attached survey depicting the property sold. It appears on the survey that a portion of the ditch is encompassed within the property boundaries. Mrs. Felderman also submitted a copy of the lease from the Gornaks to Northpark referencing the survey in the description of the leased property.
At the outset of the hearing on the motions for summary judgment, Northpark introduced all of its exhibits attached to its motion for summary judgment as well as a certified copy of a public servitude and right of way. Counsel for Northpark conceded that the act of sale of the car wash property to the Gornaks apparently showed that the Gornaks owned up to the middle of the ditch. However, counsel claimed that in 1960, a public servitude and right of way was granted over that portion of the ditch in favor of the St. Tammany Parish Police Jury for the purpose of the establishment of the drainage ditch. Northpark and the Gornaks argued that it was undisputed based on the documentary evidence that the drainage ditch, from the edge of the pavement of the car wash property to the middle of the ditch, was subject to this servitude and therefore, they did not have custody or control of the ditch and lacked responsibility for its maintenance. Secondly, Northpark argued, the ditch did not present an unreasonable risk of danger to Mrs. Felderman. Lastly, Northpark argued, even if it did own, operate, or control the drainage ditch, Mrs. Felderman was precluded from recovering for her injuries as a matter of law because she was a trespasser.
At the hearing, the Parish and District urged that the ditch did not present an unreasonably dangerous condition to Mrs. Felderman of which they had notice. The Parish and District also argued their positions that the ditch did not present an unreasonable danger to Mrs. Felderman and that they are statutorily immune from liability because the maintenance or improvement of drainage ditches is a discretionary function. They further posited that even if a servitude had been granted in favor of the Parish in 1960 without its knowledge, such did not automatically impose an obligation on the Parish's part to improve or maintain the drainage ditch.
After hearing the evidence, the trial court observed that if it accepted the word of all of the movers, it would have to find that no one had the custody or garde of the ditch, and the court concluded that there were genuine issues of material fact on that issue. However, the court found that the real issue in this case was whether the ditch, admittedly a deep, steep, and abrupt drop-off from the curb, presented an unreasonable risk of harm. The court noted that Mrs. Felderman took the position of a trespasser, the utility of the ditch is great, and the risk of harm is relatively low. Apparently, upon finding that the ditch did not present an unreasonable risk of harm to Mrs. Felderman, the court ultimately held that no duty was owed to Mrs. Felderman by any of the defendants, and granted summary judgment in favor of all of the defendants on that basis.
Northpark filed a motion to supplement the record with a document identified as "Exhibit NP-1." Because the document is part of the appellate record, another panel of this court denied the motion as moot. Felderman v. Gornak, 2012-0283 (La. App. 1st Cir. 6/4/12) (unpublished).
SUMMARY JUDGMENT
An appellate court reviews the trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. The motion 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 material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
A genuine issue is a "triable issue," or one on which reasonable persons, after considering the evidence, could disagree. Champagne v. Ward, 2003-3211 (La. 1/19/05), 893 So.2d 773, 777. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La. 4/12/05), 907 So,2d 37, 48. Any doubt as to a dispute regarding a genuine issue of material fact must be resolved against granting the motion and in favor of trial on the merits. Id.
A material fact is a fact, the existence or nonexistence of which may be essential to the plaintiff's cause of action under the applicable theory of recovery. Champagne v. Ward, 893 So.2d at 777. Because it is the applicable substantive law that determines materiality, whether a particular fact is material can be seen only in the light of the substantive law applicable to the case. Strickland v. Mason, 2011-1895 (La. App. 1st Cir. 5/23/12), 93 So.3d 703, 707.
Mrs. Felderman's theory of liability is that the unmarked, concealed, eight-foot precipice located immediately adjacent to a curb in a populated and developed area, replete with pedestrian traffic, constituted an unreasonably dangerous condition, and therefore, defendants owed a duty to protect her from this danger. In her petition, she asserted that the defendants had the legal obligation to erect a fence or other barrier or to warn of the presence of the drop-off. In this appeal, Mrs. Felderman argues that the trial court erred in granting summary judgment, because there are genuine issues of material fact as to which of the defendants actually possessed garde over the ditch into which she fell and whether the ditch constituted an unreasonably dangerous condition. She further asserts that the trial court erred in ruling that she was a criminal trespasser to whom the defendants owed no legal duty of care regarding the condition of the premises.
As a general rule, the owner or custodian of a property has a duty to keep the property in a reasonably safe condition. An owner or custodian must discover any unreasonably dangerous conditions on the premises and either correct the condition or warn potential victims of its existence. Smith v. The Runnels Schools, Inc., 2004-1329 (La. App. 1st Cir. 3/24/05), 907 So.2d 109, 112. This duty is the same under theories of negligence or strict liability. Under either theory, a plaintiff has the burden of proving that: (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 to persons on the premises; (3) the unreasonably dangerous condition was the cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Id .; La. C.C. arts. 2315 and 2317.1.
Considering all of the evidence on the motions for summary judgment, we find that there are genuine issues of material fact as to the nature of the defendants' interests in the property on which the ditch is located. Thus, it cannot be determined which defendant had actual custody of or control over the ditch, and we find that the trial court did not err in refusing to grant summary judgment in favor of any of the defendants on this issue.
However, we find that the trial court erred in concluding that, as a matter of law, the defendants owed no duty that was breached in this case because the ditch did not present an unreasonable risk of harm to Mrs. Felderman. Whether a condition of a thing is unreasonably dangerous requires a consideration of: (1) the utility of the thing; (2) the likelihood and magnitude of the harm, which includes the obviousness and apparentness of the complained-of condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activity in terms of the activity's social utility or whether the activity is dangerous by nature. Smith v. The Runnels Schools, Inc., 907 So.2d at 112. It is well-settled that whether a condition presents an unreasonable risk of harm is a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or the trier of fact. Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362, 364. The unreasonable risk of harm criterion, that involves balancing the risk and utility of the condition, is not a simple rule of law that can be applied mechanically to the facts of the case. Id. Because of the plethora of factual questions and other considerations involved, this issue necessarily must be resolved on a case-by-case basis. Id. After reviewing the evidence on the motions for summary judgment, we can only conclude that genuine issues of material fact remain as to whether the ditch constituted an unreasonable risk of harm or an unreasonably dangerous condition.
Next, we address the defendants' contention that they are statutorily immune from liability by virtue of La. R.S. 14:63(H) because Mrs. Felderman was a "trespasser." Louisiana Revised Statute 14:63 makes it a crime for any person to enter immovable property owned by another without express, legal, or implied authorization. An affirmative defense to prosecution for a violation of this provision is that the accused had the express, legal, or implied authority to be on the immovable property. Subsection H of La. R.S. 14:63 provides that owners, lessees, and custodians of immovable property shall not be answerable for damages sustained by any person who enters the property without express, legal, or implied authorization in the absence of a showing that the damages sustained were the result of the intentional acts or gross negligence of the owner, lessee, or custodian. The defendants stress that the evidence shows that the car wash was closed at the time Mrs. Felderman traversed the parking lot, that Mrs. Felderman admitted she had no business purpose or other legitimate reason to be on the property, and that Mrs. Felderman did not allege the defendants were guilty of gross negligence or intentional conduct.
We conclude La. R.S. 14:63(H) does not, as a matter of law, statutorily preclude Mrs. Felderman from recovering damages. It is doubtful that Mrs. Felderman's conduct, in traversing an unrestricted commercial parking lot simply to get to another business in a heavily populated commercial location, is the type of criminal trespass envisioned by La. R.S. 14:63(H). In any event, there are genuine issues of material fact as to whether, under all of the circumstances of this case, Mrs. Felderman had implied authority to traverse the parking lot. Furthermore, we note that the social utility and reasonableness of Mrs. Felderman's conduct in traversing the parking lot to get to a neighboring business is a factor that may be considered by the trier of fact in assessing whether the ditch presented an unreasonable risk of harm to her, and if such is found to be the case, whether Mrs. Felderman is at legal fault for causing her own injuries.
We note that the trial court did not address the Parish and District's claim of statutory immunity for discretionary acts and neither defendant raises the issue in this appeal in support of their claim that the trial court's grant of summary judgment in their favor was correct. Accordingly, we decline to address this issue at this time.
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CONCLUSION
For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Northpark Car Wash, Inc., Edward Gornak, Audrey Langhauser Gornak, St. Tammany Parish, and Gravity Drainage District No. 5 of St. Tammany Parish is reversed and this matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to the defendants, with St. Tammany Parish and the Gravity Drainage District No. 5 of St. Tammany Parish to bear costs in the amount of $1,402.75.
REVERSED AND REMANDED. DORIS JEAN FELDERMAN,
WIFE OF/AND DAVID GEORGE FELDERMAN
VERSUS
EDWARD GORNAK, ET AL.
NO. 2012 CA 0283
KUHN, J., dissenting.
I respectfully disagree with the majority's conclusion that defendants failed to establish that they were entitled to summary judgment in their favor. Defendants pointed out to the trial court the absence of evidence establishing any duty owed to plaintiffs under the facts and circumstances of this case. Thereafter, plaintiffs failed to produce factual support to demonstrate that they could satisfy their evidentiary burden of proving this essential element at trial, as they were required to do under La. C.C.P. art. 966(C)(2). Further, under the undisputed facts and circumstances of this case, plaintiffs also failed to demonstrate that the ditch presented either a foreseeable or unreasonable risk of harm. Accordingly, the trial court properly granted summary judgment dismissing plaintiffs' claims.