John V. Souza, III VS St. Tammany Parish and the City of Mandeville
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 CA 21 98 JOHN V SOUZA III VERSUS ST TAMMANY PARISH AND THE CITY OF MANDEVILLE Judgment Rendered June 8 2012 On Appeal from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Trial Court No 2008 16363 Honorable William J Knight Judge Presiding P Alvin J Dupre Jr Mandeville LA Attorney for Plaintiff Appellant Christopher M Moody Attorney for Defendant Appellee The City of Mandeville Hammond LA John V Souza III BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J HIGGINBOTHAM J Plaintiff challenges the trial court grant of summary judgment dismissing s his suit against the City of Mandeville The issue presented is whether plaintiff s claims are barred by a Louisiana recreational use immunity statute La R S 2795 9 Finding that plaintiffs claims are barred we affirm BACKGROUND According to the record John V Souza III plaintiff was injured when he fell off his bike while riding through a tunnel on the Tammany Trace the Trace on December 2 2007 The Trace is a 31 mile recreational trail running through five communities along the north shore of Lake Ponchartrain in St Tammany Parish the Parish Mandeville the City The tunnel where plaintiff fell is located in the City of Plaintiff alleges that while riding his bike through the tunnel he encountered an extremely slippery roadway surface that was covered with mold mildew slime or growth Upon contact with the slippery substance the wheels on plaintiff bike slipped out from under him causing him to fall off s his bike onto the tunnel pavement Plaintiff asserted that he suffered serious injury including a detached bicep tendon that required right elbow surgery Plaintiff filed a petition for damages against the City and the Parish asserting that the slippery slime he encountered on the roadway surface in the Trace tunnel constituted an unreasonably dangerous condition about which the City and the Parish had actual knowledge but failed to properly maintain and remedy Plaintiff voluntarily dismissed the Parish from the lawsuit but then in an amended petition for damages he further alleged that both the City and the Parish had willfully or maliciously failed to warn the Trace users about the unreasonably dangerous slippery condition in the tunnel The City filed a motion for summary judgment contending that it was entitled to immunity pursuant to La R 9 The City also asserted that S 2795 N plaintiff could not establish an essential element of his claim i that the City had e actual or constructive notice of an unreasonably dangerous condition in the tunnel at the time of his alleged accident therefore the City liability is limited pursuant s to La R 9 After a hearing the trial court granted the City motion for S 2800 s Plaintiff summary judgment and dismissed plaintiffs claims against the City appeals LAW AND ANALYSIS A court of appeal reviews the ruling of a trial court on a motion for summary judgment de novo under the same criteria that govern the trial determination of whether the summary judgment should be granted s court Lewis v Busby 2005 2242 La App 1st Cir 9 946 So 665 668 Summary 06 27 2d judgment is properly granted if the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law La C art 966 P B In ruling on a motion for summary judgment the trial court role is not to evaluate the weight of the evidence or to s determine the truth of the matter but instead to determine whether there is a genuine issue of material fact Guardia v Lakeview Regional Medical Center 2008 1369 La App 1st Cir 5 13 So 625 628 09 8 3d Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent favor Id s On a motion for summary judgment the burden of proof is on the mover If however the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover burden on the s motion does not require that all essential elements of the adverse party claim s action or defense be negated Id Instead the mover must point out to the court that there is an absence of factual support for one or more elements essential to the 3 adverse party claim action or defense s Id Thereafter the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial Id If the adverse party fails to meet this burden there is no genuine issue of material fact and the mover is entitled to summary judgment La C art 966 Robles v ExxonMobile 2002 P 2 0 0854 La App 1st Cir 3 844 So 339 341 03 28 2d In Smith v Our Lady of the Lake Hosp Inc 93 251 La 7 639 2 94 5 2d So 730 751 the Louisiana Supreme Court set forth the following parameters for determining whether an issue is genuine or a fact is material A genuine issue is a triable issue More precisely a n If on the state issue is genuine if reasonable persons could disagree of the evidence reasonable persons could reach only one conclusion there is no need for a trial on that issue Summary judgment is the means for disposing of such meretricious disputes In determining whether an issue is genuine courts cannot consider the merits make credibility determinations evaluate testimony or weigh evidence Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact A fact is material when its existence or nonexistence may be essential to plaintiff cause of action under the applicable theory of s acts F are material if they potentially insure or preclude recovery affect a litigant ultimate success or determine the s outcome of the legal dispute Simply put a material fact is one that would matter on the trial on the merits Any doubt as to a dispute recovery regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits Citations omitted Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light ofthe substantive law applicable to the case Guardia 13 So at 628 3d One of Louisiana recreational use immunity statutes is La R 9 s S 2795 providing a limitation of liability for landowners including the state and its political subdivisions of property used for recreational purposes However the statute retains liability for willful or malicious failure to warn against a dangerous 4 condition Louisiana Revised Statutes 9 provides in pertinent part as 2795 follows A As used in this Section 1 Land means urban or rural land roads 2 Owner means the possessor or person in control of the premises 3 Recreational purposes includes bicycle riding EMM3 B 1 Except for willful or malicious failure to warn against a dangerous condition use structure or activity an owner of land who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby a Extend any assurance that the premises are safe for any purposes b Constitute such person the legal status of an invitee or licensee to whom a duty ofcare is owed c Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or manmade E 2 The limitation of liability provided in this Section shall apply a to any lands whether urban or rural which are owned leased or managed as a public park by the state or any of its political subdivisions and which are used for recreational purposes Emphasis added In order to prove the liability of the City based on a defective condition of the Trace tunnel roadway surface plaintiff must prove 1 that the City owned s or had custody ofthe thing the tunnel which caused the damage 2 the thing the s tunnel roadway surface was defective in that it created an unreasonable risk of harm to others 3 the City had actual or constructive knowledge of the defect or risk of harm and failed to take corrective action within a reasonable time and 4 causation See La R 9 See also Valet v City of Hammond 577 So S 2800 2d 5 155 164 La App 1 st Cir 1991 Courts have consistently held that state entities or municipalities are not liable for every irregularity in a street or sidewalk Boyle v Board of Sup Louisiana State University 96 1158 La 1 685 rs 97 14 2d So 1080 1082 Constructive notice is statutorily defined to mean the existence of facts which infer actual knowledge La R 9 S 2800 D The City contends that it is immune from liability in this case because the accident happened on the Trace which is land designed for recreational purposes and plaintiff failed to demonstrate that the City willfully or maliciously failed to warn of any allegedly dangerous condition in the tunnel The City also asserts that the evidence does not show that the City had knowledge of any dangerous condition at the time of plaintiff injury and therefore plaintiff cannot prevail s against the City The parties do not dispute that the City maintained the Trace tunnel or that the trail was made available to the public for recreational purposes It is further undisputed that while plaintiff was using the Trace he was participating in a recreational activity bicycle riding on the day ofhis accident In support of its motion for summary judgment the City submitted a copy of s plaintiff deposition and a copy of the deposition of the City Building and s Grounds Superintendent Christopher Lange Plaintiff admitted in his deposition that he was an experienced bike rider who had ridden through the Trace tunnel several times and had never noticed or encountered slime or algae in the tunnel before Plaintiff testified that on the day of the accident he noticed water on the north side ramp of the tunnel which was unusual and it prompted him to slow down Plaintiff stated that he had never seen water slime or algae in the tunnel 1 The City submitted a copy of an agreement between the City and the Parish which was introduced into evidence at the hearing on the City motion for summary judgment The s agreement outlines the obligations of the City and the Parish regarding maintenance and improvement of the Trace tunnel and their cooperative efforts to inform each other of any potentially dangerous situation or condition that may exist in or around the tunnel The agreement also specifically outlines the obligation of the City to provide at its sole expense any and all maintenance and upkeep to the t its approaches ramps walls ceiling and unnel fences roll before that day and he did not know of anyone else that had been hurt in the tunnel or who had encountered trouble riding through the tunnel s Lange deposition testimony established that the City maintained the Trace including the tunnel within the City limits s He stated that the City regularly pressure washed the tunnel on a quarterly basis unless it was necessary to clean it more often Lange also testified that the tunnel was equipped with drains and a catch basin as well as a pump to clear out the basin when necessary Lange indicated that the Parish rangers patrolled the Trace every day and the City would be notified if there was a maintenance issue Additionally Lange stated that the swork crews checked the tunnel every week for trash and maintenance issues City According to Lange the City had never received a report of algae or slime substance on the tunnel roadway surface instead they had only received reports of water leaves trash and graffiti in the tunnel As the party moving for summary judgment the City sustained its initial burden of proof and established a prima facie case that it was entitled to immunity pursuant to La R 9 The burden then shifted to plaintiff to prove the S 2795 existence of an unreasonably dangerous condition in the tunnel the City had knowledge of the dangerous condition and the City willfully or maliciously failed to warn of such a condition See La R 9 S 2795 B In response to the City motion for summary judgment plaintiff filed an s opposition to the motion relying on the City work orders pertaining to the Trace s tunnel Plaintiff relies on three November 2007 work orders entered shortly before the accident on December 2 2007 where the City addressed water in or around the Trace tunnel According to plaintiff those work orders indicate the City had knowledge that the tunnel roadway surface was being exposed to water on 2 The work orders were attached to plaintiffs opposition to the City motion for summary s judgment and were filed in the record as a part of the City discovery response to plaintiff s s request for production of documents VA a consistent basis just prior to his accident Additionally plaintiff asserts that one year prior to his accident a work order reflects that the City pressurewashed the tunnel in response to a bike rider reporting that the bottom of the tunnel was s slippery Relying on the work orders plaintiff argues that the City had knowledge of the potential for a dangerous or slippery surface in the tunnel yet the City failed to warn Trace tunnel users of the danger Plaintiff suggests that the work orders evidenced a genuine issue of material fact as to whether the failure to warn was willful or malicious thus summary judgment was not appropriate We disagree with plaintiff sargument pertaining to the workorder evidence Each work order showed evidence that once the City was notified of the maintenance issue it was remedied on the same day Plaintiff failed to introduce any evidence that the City had knowledge of an unreasonably dangerous condition existing on the roadway surface of the Trace tunnel on the day of his accident or that the City had willfully or maliciously failed to warn of such a condition that day Once the City established that it was entitled to immunity under La R S 2795 9 the burden of establishing a malicious or willful failure to warn of a dangerous condition shifted to plaintiff who presented no summary judgment evidence in this regard A failure to warn of a dangerous condition connotes a conscious course of action and is deemed willful or malicious when action is knowingly taken or not taken which would likely cause injury with conscious indifference to the consequences thereof DeLafosse v Village of Pine Prairie 20080693 La App 3d Cir 12 998 So 1248 1251 writ denied 2009 08 10 2d 0074 La 2 999 So 766 uqoting Lambert v State 40 La App 2d 09 4 2d 170 Cir 9 912 So 426 433 34 citations omitted writs denied 05 231 05 30 2d 0 La 4 926 So 509 and 05 2311 La 4 926 So 509 06 l 2d 06 17 2d We do not find that the City failure to warn of the possibility that the s tunnel surface could be slippery when wet to be malicious or willful 8 Plaintiff made no showing that the City consciously chose a course of action that revealed a willful or malicious failure to warn users of the tunnel about the allegedly dangerous condition Rather plaintiff evidence showed that the City promptly s remedied each reported issue or complaint of water in and around the Trace tunnel Thus plaintiff failed to demonstrate that he would be able to meet his burden of proof at trial We find that the City was afforded immunity pursuant to this recreational use immunity statute under these facts Therefore the trial court did not err in concluding that there were no genuine issues of material fact as to the s City liability CONCLUSION After a de nova review ofthe record we find no error in the judgment of the trial court Accordingly we affirm the trial court summary judgment dismissing s s plaintiff claims against the City All costs ofthis appeal are assessed to plaintiff appellant John V Souza Ill r 11MV 11 1113 9
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