BRANDY BARKER VERSUS CITY OF GRAND ISLE

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BRANDY BARKER NO. 19-C-451 VERSUS FIFTH CIRCUIT CITY OF GRAND ISLE COURT OF APPEAL STATE OF LOUISIANA ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 786-834, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING January 08, 2020 MARC E. JOHNSON JUDGE Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and John J. Molaison, Jr. REVERSED MEJ RAC JJM COUNSEL FOR PLAINTIFF/RESPONDENT, BRANDY BARKER David P. Vicknair Keegan E. Chopin Hope E. Hughes COUNSEL FOR DEFENDANT/RELATOR, TOWN OF GRAND ISLE Christopher M. Moody Albert D. Giraud JOHNSON, J. Relator, City of Grand Isle1 (“Grand Isle”), seeks review of the trial court’s September 4, 2019 judgment denying its Motion for Summary Judgment against Respondent/Plaintiff, Brandy Barker. Grand Isle prays that this Court grant its motion for summary judgment and dismiss the matter, with prejudice, at plaintiff’s cost. For the following reasons, we grant the writ application. On April 13, 2018, Brandy Barker attended the Blessing of the Fleet Fair organized by Grand Isle. Ms. Barker first used the restroom trailer at least 20 minutes after arriving at the fair. She testified that she wore flip-flops that night that were “maybe a year old,” and recalled that the floors were a little wet, but “not like the second time” she used the restroom. Ms. Barker went to use the restroom trailer approximately two hours later and noticed that the floors were very wet. She said that she could not recall whether or not the floor underneath the stall she entered was wet. As she prepared to use the restroom, Ms. Barker slipped and fell. As a result of the fall, Ms. Barker broke her tibia, fibia and ankle, and dislocated her other ankle. Grand Isle moved that it was entitled to summary judgment because of the lack of evidence that Grand Isle had constructive notice of the restroom trailer conditions and that the alleged defective condition was open and obvious, and therefore not unreasonably dangerous. At the August 28, 2019 hearing on the motion, Grand Isle argued that summary judgment was not precluded on the issue of whether a condition was open and obvious. The trial judge noted that he has been overturned before by this Court because “water on the floor is, difficult to prove to be open and obvious to everyone and that that was a question of fact, and that’s, that’s where I have to fall.” 1 We note that area is incorporated as “Town of Grand Isle” and case caption is incorrect. 19-C-451 1 Appellate courts review motions for summary judgment de novo, asking the same questions as the trial court to determine whether summary judgment is appropriate. Salathe v. Parish of Jefferson Through Department of Sewerage, 19251 (La.App. 5 Cir. 7/22/19); -- So.3d --, 2019 WL3294958 at **3 citing Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773, 776. In determining whether there are any genuine issues of material fact, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Id. citing Davis v. Scottsdale Ins. Co., 13-255 (La. App. 5 Cir. 10/30/13); 128 So.3d 471, 475-77. “Under La. R.S. 9:2800, in order to prove a public entity is liable for damages caused by a thing, the plaintiff must establish: (1) custody or ownership of the defective thing by the public entity; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation.” Chambers v. Village of Moreauville, 11-898 (La. 1/24/12); 85 So.3d 593, 597. Grand Isle urges that there is a lack of factual support for Ms. Barker’s claim that it had constructive notice of the condition of the restroom trailer at the fair. The plaintiff bears the burden at trial of proving actual or constructive notice. White v. Select Specialty Hosp., 12-611 (La.App. 5 Cir. 3/13/13); 110 So.3d 1254, 1260-61. Constructive notice is defined by La. R.S. 9:2800 as the existence of facts that infer actual knowledge. Jones v. Hawkins, 98-1259 (La. 3/19/99); 731 So.2d 216, 220. In the instant case, Ms. Barker and the other affiants admit that they did not advise Fair employees of the restroom trailer conditions. Two of the three witnesses who accompanied Ms. Barker to the fair said in their sworn affidavits that they went into the same restroom trailer one hour and one and a half hours before Ms. Barker slipped and fell in the stall. All witnesses, including the one 19-C-451 2 who accompanied Ms. Barker to the restroom trailer the first time, approximately thirty minutes after the group arrived at the fair, reported that the restroom floor was wet with clear water/liquid. All three also noted that it had been raining for several hours that night, and the Fair rides were shut down because of the weather. If the mover will not bear the burden of proof at trial . . . 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 . . . 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. La. C.C.P 966(D)(1). Grand Isle argues that the wet restroom trailer floor was an open and obvious condition, and therefore not unreasonably dangerous. Based on the evidence presented, we agree. Ms. Barker and her witnesses all testified that it was raining outside that night and the restroom trailer floor was wet. The affiant that went to the same restroom trailer where Ms. Barker’s accident took place approximately an hour and a half earlier testified that the toilets were clearly backed up and had been overflowing, the floor of the restroom trailer was very dirty, “muddy around the sink and general walking spaces,” and full of water and that because the clear nature of the liquid she “could not see whether the floors in the actual stalls were flooded [. . . but] assumed it was slippery and wet due to the toilet paper sticking to the floors in the bathroom stall I observed[.]” Summary judgment is not precluded “[. . .] when no legal duty is owed because the condition encountered is obvious and apparent to all and not unreasonably dangerous.” Allen v. Lockwood, 14-1724 (La. 2/13/15); 156 So.3d 650, 653 citing Bufkin v. Felipe’s Louisiana, LLC, 14-0288 (La. 10/15/14); 171 So.3d 850, 861 n.3. “The determination of an unreasonable risk of harm is a question of fact; however [. . .], our jurisprudence does not preclude the granting of a motion for summary judgment in cases where the plaintiff is unable to produce 19-C-451 3 factual support for his or her claim that a complained-of condition or thing is unreasonably dangerous. Bufkin, supra at 859. Considering the foregoing, we find that the water on the restroom floor was an open and obvious condition and, therefore, not unreasonably dangerous. DECREE Based on the foregoing reasons, we find that the Ms. Barker is unable to prove the City of Grand Isle is liable under La. R.S. 9:2800 for damages. We grant Grand Isle’s motion for summary judgment and Ms. Barker’s petition is dismissed, without prejudice. All parties to bear their own costs on appeal. REVERSED 19-C-451 4 SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST HANS J. LILJEBERG FIFTH CIRCUIT JOHN J. MOLAISON, JR. 101 DERBIGNY STREET (70053) JUDGES POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 www.fifthcircuit.org FIRST DEPUTY CLERK MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF (504) 376-1400 (504) 376-1498 FAX NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JANUARY 8, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: 19-C-451 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE) KEEGAN E. CHOPIN (RESPONDENT) CHRISTOPHER M. MOODY (RELATOR) MAILED ALBERT D. GIRAUD (RELATOR) ATTORNEY AT LAW 1250 SW RAILROAD AVENUE SUITE 170 HAMMOND, LA 70403 DAVID P. VICKNAIR (RESPONDENT) HOPE E. HUGHES (RESPONDENT) ATTORNEYS AT LAW 909 POYDRAS STREET SUITE 1100 NEW ORLEANS, LA 70112

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