Opinion
No. 2010 CA 1909.
July 22, 2011. NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBER 2008-16055, DIVISION J, PARISH OF ST. TAMMANY STATE OF LOUISIANA HONORABLE WILLIAM J. KNIGHT, JUDGE.
Stephen C. Aertker, Jr., Covington, Louisiana, Counsel for Plaintiffs-Appellants, Sandra G. Simon, Wife of/and RenéJ. Simon.
Clare W. Trinchard, Jacob S. Stephens, New Orleans, Louisiana, Counsel for Defendant-Appellee, Loomis Armored US, Inc.
BEFORE: CARTER, C.J., KUHN, PETTIGREW, HUGHES, AND HIGGINBOTHAM, JJ.
In this personal injury case, plaintiffs, Sandra and René Simon, appeal a judgment that granted a motion for summary judgment filed by defendant, Loomis Armored US, Inc. ("Loomis"), and dismissed "plaintiffs claims." We modify the judgment to provide for the dismissal of both plaintiffs' claims and, as modified, we affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
In their petition, the Simons alleged that on November 14, 2007, Ms. Simon was shopping at the Stirling Mandeville Shopping Center in Covington, Louisiana. She utilized the pedestrian ramp located in front of Marshalls as she entered the store. After shopping, she exited the store and began walking towards the pedestrian ramp. At that time, an armored vehicle owned by Loomis was parked in front of the Marshalls store, in a position that blocked use of the pedestrian ramp. Ms. Simon "attempted to walk around the Loomis vehicle," and as she stepped from the curb, she "tripped and/or misstepped on the curb and fell into the parking lot," injuring her left ankle.
On November 14, 2008, the Simons filed suit against Loomis, alleging it is vicariously liable for the negligence of its driver, who improperly parked the armored vehicle so as to block the pedestrian ramp. Loomis answered the suit, generally denying the Simons' allegations, and further answering to assert that Ms. Simon was negligent in failing to observe an open and obvious condition and in failing to exercise reasonable care. On October 14, 2009, Loomis filed a motion for summary judgment, urging in pertinent part as follows:
The Simons also named other defendants who are not relevant to this appeal.
The pleadings and discovery on file, together with attached depositions, affidavits, and exhibits, show that no genuine issue as to any material fact exists and that [it] is entitled to judgment as a matter of law. Plaintiff cannot establish that [it] was a cause-in-fact or legal cause of her alleged accident nor can she establish that [it] breached any duty owed to her.
The Simons opposed Loomis's motion for summary judgment and filed an affidavit by Ms. Simon, which stated, in pertinent part, that on the day in question: 1) she parked her car in the parking lot; 2) she walked from her vehicle, crossed the crosswalk of the parking lot, went up the pedestrian ramp, and entered Marshalls without incident; 3) upon exiting Marshalls, she noticed that a Loomis vehicle was blocking the pedestrian ramp; 4) she attempted to walk around the Loomis vehicle; 5) she stepped down off of a curb and fell into the parking lot; 6) she always looks for and uses pedestrian ramps to and from parking lots when entering and exiting stores; 7) if the Loomis vehicle would not have been blocking the pedestrian ramp, she would have used the ramp to walk into the parking lot; 8) if she had used the ramp to walk into the parking lot, she would not have fallen; and 9) if the Loomis vehicle would not have been blocking the pedestrian ramp, she would not have fallen.
After hearing the arguments presented by counsel, the trial court found that "Ms. Simon made the choice of how to proceed" and "no duty was breached to Ms. Simon which was the cause[-]in[-]fact of this accident." By judgment dated April 27, 2010, the trial court granted Loomis's motion for summary judgment and dismissed "plaintiff's claims against [Loomis] with prejudice." The Simons have appealed this judgment, asserting that the trial court erred in granting the motion for summary judgment because there are "numerous genuine issues of material fact" regarding whether Loomis's driver was negligent in blocking the pedestrian ramp.
II. ANALYSIS
A motion for summary judgment shall be granted 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. 966B. The summary judgment procedure is favored in Louisiana and is designed to secure the just, speedy, and inexpensive determination of actions. La.C.C.P. art. 966A(2). Summary judgments are reviewed on appeal de novo, using the same criteria that govern the trial court's consideration of whether a summary judgment is appropriate, and in the light most favorable to the non-movant. Yokum v. 615 Bourbon Street, L.L.C., 07-1785, p. 25 (La. 2/26/08), 977 So.2d 859, 876. Thus, appellate courts must ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Hood v. Cotter, 08-0215, p. 9 (La. 12/2/08), 5 So.3d 819, 824. A "genuine issue" is a "triable issue." Smith v. Our Lady of the Lake Hospital, Inc. , 93-2512 (La. 7/5/94), 639 So.2d 730, 751. An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id. A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Jones v. Estate of Santiago, 03-1424, p. 6 (La. 4/14/04), 870 So.2d 1002, 1006. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is "material" for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La. 4/23/04), 874 So.2d 131, 137.
The initial burden of proof remains with the mover to point out that no genuine issue of material fact exists. La.C.C.P. art. 966C(2); see Jones, 03-1424 at p. 5, 870 So.2d at 1006. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a genuine issue of material fact remains. Id. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La. C .C.P. art. 966C(2); Jones , 03-1424 at p. 5, 870 So.2d at 1006.
The Simons' claim against Loomis is based on negligence. This negligence case is resolved by employing a duty-risk analysis, which involves five elements: (1) that the defendant's conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (2) that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) that the defendant's conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) that the plaintiff suffered actual damages (the damages element). Goins v. Wal-Mart Stores, Inc. , 01-1136, p. 6 (La. 11/28/01), 800 So.2d 783, 788. If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. Perkins v. Entergy Corp. , 00-1372, p. 7 (La. 3/23/01), 782 So.2d 606, 611.
Whether a duty is owed is a question of law. Brooks v. State ex rel. Dep't of Transp. and Dev. , 10-1908, p. 9 (La. 7/1/11), ___ So.3d ___. Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs, and such relation must be substantial in character. Bellanger v. Webre , 10-0720, p. 5 (La. App. 1st Cir. 5/6/11), ___ So.3d ___.
In the proceedings below and in this court, Loomis argued that no statute or jurisprudence creates liability for the owner of a vehicle parked on private property. Loomis further argued that its truck's presence near the store entrance in the shopping center parking lot in no way breached the duty of "reasonable care" that its driver owed to other drivers and pedestrians. Further, Loomis asserts that its truck's presence was not hidden or dangerous, as evidenced by the fact that plaintiff consciously walked around the Loomis truck. Loomis contends that because there was no proximate relationship between the actions of Loomis and the harm which occurred to plaintiff, its conduct was not a legal cause of Ms. Simon's injuries.
The Simons counter by arguing that Loomis violated Louisiana Revised Statutes 32:143, which they assert is applicable to private parking lots as well as public roadways, based on the provisions of Louisiana Revised Statutes 32:867. They assert that the Loomis vehicle blocked the crosswalk connecting the parking lot to the pedestrian ramp, and that this conduct was the cause-in-fact of Ms. Simon's injuries. The Simons contend there is a genuine issue of material fact, but they do not identify any particular factual issue that is essential to their cause of action. They assert only that there is "conflicting evidence" because Loomis asserts that the incident was caused by Ms. Simon's negligence and plaintiffs allege that Ms. Simon's incident and resulting injuries were caused by Loomis.
Louisiana Revised Statutes 32:143A provides, in pertinent part, as follows:
No person shall stand, or park a vehicle, except when necessary to avoid conflict with other traffic, or in compliance with law or the directions of a police officer or traffic control device, in any of the following places:
(5) On a cross walk;
(8) Between a safety zone and the adjacent curb, or within twenty feet of points on the curb immediately opposite the ends of a safety zone[.] Louisiana Revised Statutes 32:867 provides, in pertinent part, as follows:
A. The provisions of this Part shall apply to the operation of a motor vehicle in any privately owned parking lot that is utilized for commercial or retail activities.
C. The provisions of this Part shall not apply to any legally parked vehicle.
"[Part I-A of the Compulsory Motor Vehicle Liability Security" Law] referenced in La.R.S. 32:867A does not encompass La.R.S. 32:143, which is found in Part IV of the Louisiana Highway Regulatory Act. As such, La.R.S. 32:867 does not provide that La.R.S. 32:143 applies to privately owned parking lots. Further, no violations of La.R.S. 32:143A(5) and (8) occurred based on the undisputed facts of this case. See the definitions of "crosswalk" and "safety zone" in La.R.S. 32:1(13) and (61), which refer to "roadway and "highway" as defined in La.R.S. 32:1(25) and (59), rather than a "parking area" as defined in La.R.S. 32:1(46.1). The parking lot in question does not contain a "crosswalk" or a safety zone" because the parking lot is not a "roadway" or a "highway" as referenced within the meaning of La.R.S. 32:143.
Louisiana Revised Statutes 32:1 provides, "When used in [the Louisiana Highway Regulatory Act]," the enumerated "words and phrases" contained therein have the meaning ascribed to them, as set forth below, in pertinent part:
(13) "Cross-walk" means: (a) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in absence of curbs, from the edges of the traversable roadway.
(b) Any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface.
(25) "Highway" means the entire width between the boundary lines of every way or place of whatever nature publicly maintained and open to the use of the public for the purpose of vehicular travel, including bridges, causeways, tunnels and ferries; synonymous with the word "street."
(46.1) "Parking area" means an area used by the public as a means of access to and egress from, and for the free parking of motor vehicles by patrons of a shopping center. . . ."
(59) "Roadway" means that portion of a highway improved, designed, or ordinarily used for vehicular traffic, exclusive of the berm or shoulder. A divided highway has two or more roadways.
(61) "Safety zone" means the area or space officially set apart within a highway for the exclusive use of pedestrians and which is protected or is so marked or indicated by adequate signs as to be plainly visible at all times while set apart as a safety zone.
Further, Loomis generally had no duty to protect against the open and obvious condition of its parked vehicle. If the facts of a particular case show that the complained-of condition should be obvious to all, the defendant may owe no duty to the plaintiff. See Pryor v. Iberia Parish School Bd. , 10-1683, pp. 4-5 (La. 3/15/11), 60 So.3d 594, 596. The evidence establishes plaintiff was aware of the presence of the Loomis truck. She could have easily avoided any risk presented to her by its open and obvious presence by using additional care as she stepped from the curb into the parking lot or by choosing to take a different path than the one she took. See Pryor , 10-1683 at p. 6, 60 So.3d at 598. Further, the record contains no evidence that Ms. Simon was handicapped or otherwise needed to use the pedestrian ramp to safely traverse the parking lot. Although the Loomis driver owed a duty of reasonable care to other motorists and pedestrians that utilized the parking lot, the scope of that duty did not extend to protect against Ms. Simon's conduct of "tripp[ing] and/or misstepp[ing] on the curb and falling into the parking lot."
Plaintiffs did not put forth any evidence or even allege that Ms. Simon had any physical contact with the Loomis vehicle or that it obstructed her view of the sidewalk, curb, or area of the parking lot where she fell.
After a de novo review of the case, we find no genuine issues of material fact and find that Loomis is entitled to judgment as a matter of law. Loomis pointed out the absence of support for the scope of protection element of plaintiffs' claim. The burden then shifted to plaintiffs to produce support sufficient to establish that they would be able to satisfy their evidentiary burden at trial. La.C.C.P. art. 966(C)(2). They failed to meet this burden. Accordingly, there is no genuine issue of material fact, and Loomis is entitled to judgment as a matter of law.
III. CONCLUSION
For the above reasons, we modify the trial court's judgment to dismiss the claims of both Mr. and Ms. Simon, and as modified, we affirm the trial court's judgment. All costs of this appeal are assessed against the Simons.
JUDGMENT MODIFIED AND, AS MODIFIED, AFFIRMED.