Opinion
Civil Action No. 01-3902, Section "L" (5).
March 7, 2003
ORDER AND REASONS
Before the Court is Plaintiffs motion for summary judgment on the issue of liability. For the following reasons, the motion is DENIED.
BACKGROUND:
Plaintiff filed this suit against the City of New Orleans, alleging that she sustained injuries when she fell on a crumbled street curb on the corner of Canal Street and Tchoupitoulas on December 28, 2000. Although this case presents a simple set of facts, the posture of this case is unique. Since the date of the early status conference scheduled in this case, this Court has been faced with numerous problems with the case. First, as documented in previous Court records, the Defense counsel failed to attend the early status conference and disregarded an order of this Court resulting in contempt of Court and the granting of Plaintiffs motion to strike defenses. Next, at the originally designated pre-trial conference, the Plaintiff failed to prepare a pre-trial order and to meet certain discovery deadlines, apparently from confusion as to how to proceed with the case in light of the fact that defenses were struck. This led to the current motion for summary judgment on the issue of liability, which the Court requested and the parties agreed that the issue of liability would be determined by summary judgment and quantum to be determined by a bench trial. The Court allowed the Defendant an opportunity to oppose to the summary judgment, despite the fact that the Defendant may not present defenses at trial. The Court has reviewed the Plaintiff's motion for summary judgment on the issue of liability, the Defendant's opposition, and the applicable law, and finds that summary judgment on liability is inappropriate because Plaintiff failed to prove that she is entitled to judgment as a matter of law.
LAW ANALYSIS
Having explained the unique posture of this case, the Court now moves to the merits of the motion for summary judgment on the issue of liability. Summary judgment will be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits show that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. if the party moving for summary judgment demonstrates the absence of a genuine issue of material fact "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995). "[A] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To oppose a motion for summary judgment, the nonmovant cannot rest on mere allegations or denials but must set forth specific facts showing that there is a genuine issue of material fact. See Celotex Corp. v. Carett, 477 U.S. 317, 321-22 (1986). If the evidence leads to only one reasonable conclusion, summary judgment is proper. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
In this district, Local Rule 56.2 sets forth requirements for an opposition to a summary judgment. Specifically, the rule provides the following:
Each copy of papers opposing a motion for summary judgment shall include a separate, short, concise statement of material facts as to which there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted, for purposes of the motion, unless controverted as required by this rule.
Defendant did not include such a separate statement of material facts with its opposition to the summary judgment as required by this rule and, therefore, the Plaintiffs statement of uncontested material facts are deemed admitted for purposes of this motion. However, Plaintiff has included in her statement of material facts a few conclusions of law, which are no deemed established based on Defendant's failure to comply with the local rule. It is for the Court to decide the legal issues based on the factual statements made in Plaintiffs statement of material facts.
The material facts that are accepted as admitted for purposes of this motion include the following facts: (1) the City of New Orleans is the owner of the sidewalks and curbs situated within its city limits; (2) the Plaintiff, Sharon Innes, stumbled and fell as she tried to step over a crumbled curb on the corner of Canal Street and Tchoupitoulas in the City of New Orleans and suffered personal injuries; and (3) during autumn of 2000, Ms. Karen Carolan, the manager of the Cajun Country minimart on the corner of Canal and Tchoupitoulas made several calls to the City of New Orleans to report a defective condition in the sidewalk in front of her store, to which the City never responded. Plaintiffs motion for summary judgment is focused on the argument that the City had constructive notice of the defective crumbled curb and, therefore, is liable to the Plaintiff for her injuries sustained when falling on the crumbled curb.
The Plaintiff is suing the City of New Orleans for negligence under Louisiana Civil Code article 2317.1 and Louisiana Revised Statute 9:2800. Louisiana Civil Code article 2317.1 provides the following:
This case is brought pursuant to the diversity jurisdiction of this Court. This Court is, therefore, bound to apply substantive law of Louisiana. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938).
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. . . .
In addition, Louisiana Revised Statute 9:2800 provides that no person shall have a cause of action based on article 2317.1 liability against a public entity for damages caused by the condition of things within its care and custody unless "the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so." Constructive notice is defined as the existence of facts which infer actual knowledge. La.Rev.Stat. Ann. 9:2800 (West 1997).
In order to prove liability under article 2317.1 and Revised Statute 9:2800, the Plaintiff must prove that (1) the thing which caused damages was in the custody or control of the Defendant; (2) the thing had a defect that created an unreasonable risk of harm; (3) the injuries were caused by the defect; and (4) the Defendant had actual or constructive knowledge of the defect. Nelson v. Louisiana Stadium Exposition District, FMG, Inc., 832 So.2d 1043, 1047 (La.Ct.App. 4th Cir. 2002).
In her motion for summary judgment on liability, the Plaintiff focuses only on the issue of constructive knowledge and argues that if the City is deemed to have had constructive knowledge of the defect, then liability follows. The Plaintiff argues that the City of New Orleans had constructive knowledge of the defective condition of the crumbled curb and failed to remedy it. Plaintiff asserts that the manager of the Cajun Country Minimart, a store located on the corner of Canal and Tchoupitoulas where the accident occurred, had previously called the city of New Orleans during the autumn of 2000 to complain about a different problem with the sidewalk on the corner of Canal and Tchoupitoulas. The affidavit of the manager of the store indicates that despite several calls, the City never came out to repair the problem with the sidewalk and she hired her own carpenter to repair the problem. Plaintiff argues that if the City had come out and responded to the store manager's complaint about the sidewalk problem, it would have seen the crumbled curb, which was about 10 feet away and would have repaired it. Therefore, because the City failed to respond to the manager's complaints, it had constructive knowledge of the crumbled curb. It is Plaintiffs position that the condition of the crumbled curb existed for a period of time and that the city, had it exercised ordinary care and diligence by responding to the manager's complaints, would have known of its existence and had a reasonable opportunity to fix it.
Several problems are evident with Plaintiff s argument for summary judgment on the issue of liability. First, the Plaintiff completely fails to address an essential element of her claim, that is, whether the crumbled curb created an unreasonable risk of harm. Without proof of this element, the Plaintiff does not prove liability. Furthermore, Plaintiffs argument that the City had constructive knowledge of the defect is tenuous and unconvincing. The only evidence Plaintiff points to supporting the City's constructive knowledge is the manager's calls to the City about an entirely different problem with the sidewalk near the defective curb. There is no evidence that a complaint was ever made about the particular problem that caused the incident, the crumbled curb. One Louisiana Court has specifically rejected a similar argument for a finding of constructive knowledge based on a hypothetical that had the city properly responded to complaints over one problem, then they would have discovered the nearby problem which caused the plaintiffs injuries. Whitaker v. City of Bossier City, 813 So.2d 1269, 1272 (La.Ct.App. 2d Cir. 2002) (holding City's failure to respond to complaints about weeds in the ditch or to routinely cut the grass in the ditch does not impute constructive knowledge of a small hole along the edge of the ditch which caused plaintiff to fall). Because Plaintiff has failed to prove in her motion for summary judgment two essential elements of her claim, i.e., that the crumbled curb was unreasonably dangerous and that the City had notice of the defect and failed to remedy it, the Plaintiff is not entitled to judgment as a matter of law on the issue of liability.
In light of this Court's finding on the summary judgment motion, the issues of liability and quantum are now left for trial.
CONCLUSION:
For the foregoing reasons, the Plaintiffs motion for summary judgment is DENIED. Accordingly, the issues of liability and quantum will be resolved at a bench trial set for Thursday, May 1, 2003.