Barbara Price VS Waterworks District # 1 and Terrebonne Parish Consolidated Government
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 0032 BARBARA PRICE VERSUS WATERWORKS DISTRICT 1 AND TERREBONNE PARISH CONSOLIDATED GOVERNMENT Judgment rendered September fJY 11 2009 Appealed from the 32nd Judicial District Court in and for the Parish of Terrebonne Louisiana 7 9 Trial Court No 150 733 Honorable Randall L Bethancourt Judge KEVIN D THOMPSON ATTORNEY FOR HOUMA PLAINTIFF APPELLANT LA BARBARA PRICE ATTORNEYS FOR DANNA E SCHWAB KATHRYN W HOUMA DEFENDANTS APPELLEES RICHARD WATERWORKS DISTRICT LA 1 and TERREBONNE PARISH CONSOUDATED GOVERNMENT BEFORE CARTER C J GUIDRY AND PETTIGREW JJ PETTIGREW J Plaintiff appellant Barbara Price appeals from the trial favor judgment in of referred to as the that follow we back when she slipped Mrs Price on water as was February 13 2008 defendants filed by judgment granting defendants from this judgment that Mrs Mrs Price the floor of the Waterworks A motion for summary trial when there is Inc op no 2001 2956 Dr Pat As a on file and v Price has injuries she District Court against the Following 3 La a mover judgment seeking hearing the trial court 2008 appealed and challenges the trial or signed It is court s constructive notice of the presence of water building on the morning of her fall judgment is a App procedural device used Johnson 1 Cir 12 30 02 is entitled to v judgment inexpensive determination of every action Evan Hall answers to as a 501 502 2 486 La no matter of law App Summary genuine issue of La Code Civ P to secure the 1 Cir Sugar Co interrogatories and just speedy La Code Civ P art 966 A pp 4 5 2002 0338 to avoid a full scale 836 So 2d 484 Summary judgment is favored and is designed Fina Oil and Chemical Co 498 result of the together with affidavits if any show that there is material fact and that Art 966 B a who referred her to motion for summary judgment is properly granted if the pleadings depositions admissions Haydel 32nd Judicial genuine issue of material fact p For January 19 on motion for summary judgment on March 31 determination that the TPCG lacked actual on collectively March 8 2007 dismissal of the claims asserted a 1 later treated and released from Terrebonne Medical Imaging Center and Houma Orthopedic Clinic on TPCG C she entered the Waterworks office treatment from ultimately sought Waterworks and TPCG District allegedly fell and injured her left leg and lower sustained in this accident Mrs Price filed suit in the On Waterworks affirm 2007 to pay her bill Mrs Price Clearview grant of summary prejudice all claims of Mrs Price that dismissed with defendants According to the record Center and appellees Consolidated and Terrebonne Parish Consolidated Government Waterworks reasons defendants court s 2 14 03 2 Thomas 845 SO 2d On motion for summary a however the the court not on judgment the burden of proof is will not bear the burden of mover the motion for summary factual Instead the support for one Thereafter defense adverse mover on the motion does or more elements essential to the adverse the adverse is entitled to summary under the whether summary App Because it is the Code Civ P 7 p at trial C 2 Allen Robles 844 So 2d 339 341 appropriate appellate courts review v State ex s determination of dispute are Authority 2002 1072 p 5 La 4 9 03 842 So 2d 373 Foreman 1 Cir App v can be seen Danos and Curole Marine Contractors 9 25 98 a only in light of the substantive law 722 So 2d 1 4 writ denied 98 2703 Inc La actually controverted therefore the trial Price claims court was correct in granting judgment In their brief to this court defendants point out Mrs Price stated her affidavit that it Waterworks it Morial rei Ernest N In the instant case defendants assert none of material facts that Mrs summary v 734 So 2d 637 12 18 98 to be in If the applicable substantive law that determines materiality whether case La is 966 art criteria that govern the trial court particular fact in dispute is material applicable to this to genuine issue of material fact and the 1 Cir 3 28 03 judgment is appropriate New Orleans Exhibition Hall 97 2038 La judgment same action or party s claim satisfy his evidentiary burden of proof determining whether summary judgment novo defense be party must produce factual evidence sufficient Exxonmobile 2002 0854 p 4 La evidence de or out to the court that there is an absence of to meet this burden there is no party fails In point must mover establish that he will be able to 377 burden mover s require that all essential elements of the adverse party s claim action negated If mover at trial on the matter that is before proof judgment the the on was not was building raining raining no day of the accident Secondly defendants admit they did warning signs fargue there is the at the time she entered the Defendants concede neither the Waterworks policy regarding their floors that wet floor on nor TPCG has claimed not have a written Third defendants further admit there has been were posted prior conflict between to Mrs Price the affidavits of Mrs 3 in s fall Fourth no inspection allegation defendants Price and that of Stephen Mrs Price further attested to the fact Hornsby the general manager of the Waterworks she fell in water upon and that she did not on the entering the Waterworks building that it was raining that morning see any morning of the incident entrance of the on no one the in or TPCG applicable Louisiana Revised Statute 9 2800 is as was water on the floor at the assert there is no evidence of actual part of the Waterworks responsibility of public entities such part Mr Hornsby stated simply that reported there Finally defendants building constructive notice For his warning signs as or required by La R S 9 2800 interpretation of the legal to an the Waterworks and TPCG 1 Said statute provides pertinent part as follows 2800 A Limitation of liability for public bodies public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody A N o person shall have a cause of action based c solely upon liability imposed under Civil Code Article 2317 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 D Constructive notice actual shall mean the existence of facts which infer knowledge In order for TPCG and the Waterworks to be liable in this case it was incumbent upon Mrs Price to show the Waterworks and TPCG had actual the existence of water on the floor at the Waterworks and thereafter failed to take corrective In of within constructive notice of building prior to Mrs Price a Stephen Hornsby the general manager of the Waterworks was morning of the incident La R S 9 2800 G familiar with the accident no one reported there 1 s fall reasonable time support of their motion for summary judgment defendants attached Hornsby stated he 1 measures or an In his affidavit involving Mrs Price and that was water on affidavit on Mr the the floor at the entrance of provides in pertinent part Public entity means and includes the state and any of its departments offices agencies boards commissions instrumentalities officers officials employees and political subdivisions and the departments offices agencies boards commissions instrumentalities officers officials and employees of such political subdivisions branches 4 the Hawkins 98 1259 p 6 inspection has actual Supreme Court previously held in its opinion in Jones The Louisiana building La 3 19 99 in no way shows or knowledge of Waterworks nor a 731 So 2d 216 220 that the absence of implies that a plan of a employee of the appropriate public entity an dangerous defect TPCG had actual notice of v or condition Having shown neither the defect it became Mrs Price s duty to show evidence of constructive notice In her brief to this court Mrs Price pointed her accident and the Waterworks did not have floors It is the floor written possessed constructive notice Mrs Due to the lack of evidence conclude the trial court material fact that would was or of prior as to on the day of as to whether or not the Price failed however to introduce showing Waterworks employees had knowledge during previous rainstorms raining inspection policy regarding its urged that these issues raise material issues of fact Waterworks evidence a to the fact it was as to the presence of water on slip and fall incidents at that location actual or constructive notice by defendants correct in its determination there existed no we evidence of preclude summary judgment For the above and foregoing reasons the trial court s rendition of summary judgment in favor of defendants appellees the Waterworks and TPCG that dismissed with prejudice all claims of plaintiff appellant Mrs Price is hereby affirmed associated with this All costs appeal shall be assessed against plaintiff appellant Mrs Price issue this memorandum opinion in accordance with Uniform Rules Rule 2 16 16 AFFIRMED 5 Courts of We Appeal
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