Roddy Chiasson VS J.E.L., LLC, ABC Insurance Company, Papa Bear's Pizza, LLC d/b/a Mike's Daiquiris & Grill, DEF Insurance Company, Circle K Stores, Inc. & XYZ Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0930 RODDY CHIASSON VERSUS j L LLC ABC INSiJRANCE COMPANY PAPA BEAR PIZZA S LLC DB MIKE DAIQUIRIS AND GRILL DEF 1NSLTRANCE AS COMPANY CIRCLE K STORES INC AND XYZ INSURANCE COMPANY DATE OF JUDGMENT MAR 2 1 2013 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 574 SEC 27 PARISH OF EAST BATON ROUGE 840 STATE OF LOLTISIANA HONORABLE TODD HERNANDEZ JUDGE Peyton P Murphy Baton Rouge Louisiana Counsel for Plaintiff Appellant Roddy Chiasson Mark D Plaisance Thibodaux Louisiana Rebecca K Wisbar Baton Rouge Louisiana Counsel for Defendants Appellees Carolyn Sobert Robert Sobert and Todd Sober BEFORE KiJHN PETTIGREW AND McDONAL JJ Disposition AFFIItMED KLJHN J appellant Plaintiff Roddy Chiasson appeals the trial court judgment s granting summary judgment in favor of defendants Carolyn Sobert appellees Robert Sobert and Todd Sobert collectively the Soberts and dismissing his claims far damages after he sustained personal injuries in a bicycle accident We affirm FACTUAL AND PROCEDURAL BACKGROUND On 7anuary 1 2009 Chiasson was riding his mountain bike in an area known as Tigertown in Baton Rouge generally traveling in an easterly direction to the Circle K Stares Inc convenience store Circle K located at 4405 Alvin Dark Avenue to pick up some bread and milk He traversed a vacant lot adjacent to the Circle K premises on one side and a shopping center located on Bob Pettit Blvd on the other where two bars JL Place and Mike Daiquiris were housed Chiasson s s drove over a speed bump allegedly situated primarily on the westem side of the vacant lot and partially on the eastern side of the Circle K premises Once his front tire crossed over the speed bump he encountered a pothole and Chiasson was thrown off his bike approximately 6 feet He put his hand out to break the fall 8 and landed on the ground Chiasson sustained injuries to his left arm neck and back On January 29 2009 Chiasson filed this lawsuit naming the Soberts as defendants in their capacities as owners of the property upon which the two bars were situated and specifying Todd Sobert in his capacity as lessee of the vacant lot as well as their insurers Afrer answering the lawsuit the Soberts filed a motion for summary judgment avening that Chiasson failed his burden of proving In his original and amending petition Chiasson named vazious other defendants including the owners of the two bars and their respective insurers and the owners and lessees of the Circle K premises At the time Chiasson filed his lawsuit the Soberts had ownership interests in the two bars and Todd was the titled lessee of the vacant lot But by the time of the hearing the Soberts had sold their respective ownership interests in the bars and Todd had transferred his lessee interest in the vacant lot to his brother Robert 2 all the elements of his claim and therefore they were entitled to be dismissed from the lawsuit The motion was continued to allow Chiasson more time to conduct discovery On October 17 20ll the trial court heard the motion and granted summary judgment in favor of the Soberts dismissing Chiasson claims s with prejudice This appeal followed DISCUSSION Summary judgment is proper 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 art 966B The initial burden of producing P evidence at the hearing on the motion for summary judgment is on the mover Schultz u Guoth 2010 La 1 57 So 1002 1006 If the mover 0343 11 19 3d will not bear the burden of proof at trial on the subject matter of the motion they need only demonstrate the absence of factual support for one or more essential elements of their opponent claim action or defense If the moving parties point s out that there is an absence of factual support for one or more elements essential to the adverse party claim action ar defense then the nonmoving party must s produce factual support sufficient to satisfy his evidentiary burden at trial La P C art 966C A summary judgment is reviewed on appeal de novo with the 2 appellate court using the same criteria that govern the trial court determination of s whether summary judgment is appropriate i determining whether there is any e 2 Motions for summazy judgment filed by defendants Papa Bear Pizza LLC d Mike s a bs Daiquiris and Grill Dazin Adams John Landry and Gaffney Yonan LLC as owners of Mike s Daiquiris defendants JEL LLC Darin Adams and John Landry as owners of JL Place and s defendant Circle K as lessee of the Circle K premises were also granted by the trial court as a result of the October 17 2011 hearing Chiasson has appealed the trial court dismissal ofthese s defendants in separate appeals See Chiasson x JEL Inc 2012 2012 and 2012 0929 0931 0932 La App lst Cir unpublished opinions The trial court denied a similaz motion for dismissal by summary judgment filed by the Circle K premises owners Rose Vaughan Robert Bennett Glynn Hadskey Margaret Sisson and now deceased Norman Sisson That action has not yet been the subject ofjudicial review See La C arts 968 and 2083 P 3 i genuine issue of material fact and whether the movant is entitled to judgment as a matter of law Samaha u Rau 2007 La 2977 So 880 882 1726 08 26 2d 83 The threshold issue in any negligence action is whether the defendant owed the plaintiff a dury Lemar v Essen Lane Daiquiris Inc 2005 La n 1095 06 10 3 923 So 627 633 Whether a duty is owed is a question of law Id 2d As a general rule the owner or occupier of land has a duty to keep the property in a reasonably safe condition Pryor u Iberia Parish School Bd 2010 La 1683 11 15 3d 3 60 So 594 596 This includes a duty to discover any unreasonably dangerous conditions on the premises and either correct the condition or warn potential victims of its existence Vinccinelli v Musso 2001 La App lst 0557 Cir 2 818 So 163 165 writ denied 2002 La 6818 So 02 27 2d 0961 02 7 2d 767 There are two thearies of liability available to a plaintiff v claims he was ho injured as a result of the condition of a thing negligence under La C arts 2315 and strict liability under La C arts 2317 and 23171 Under either theory a plaintiff must prove that the condition of the thing presented an unreasonable risk of harm or was defective and that this condition of the thing was a cause ofher injuries Vinccinelli v Musso 818 So at 165 fact in 2d The trial court concluded that the Soberts did not owe a duty to Chiasson because all of the evidence admitted at the hearing showed that the alleged cause of the accident was a pothole that it is undisputed was located wholly on the Circle K premises On appeal Chiasson asserts that genuine issues of material fact preclude that conclusion Among the evidence Chiasson introduced at the hearing was the affidavit of Dr Olin Dart a civil engineer who is a professar emeritus of civil engineering at 4 LSU with recognized expertise in traffic engineering highway design traffic safety and accident reconstruction Dr Dart stated The concrete speed bump between the two parking lots is a two faced device From the east it gives the appearance f a normal speed bump which is 2 high and 9 to 24 wide that could be easily traversed From the west it appears more like a barrier being some 9 higher than the Circle K lot level I assume that the tire marks on the device are from vehicles going west and bottoming out on the top Those vehicles going over the barrier were responsible for creating the potholes most probably when the gravel was wet There is no question but that this faulty speed bump was barrier P defective and along with the potholed gravel surface abutting the Circle K parking lot were the direct causes of Chiasson bicycle s crash Approaching this device at a reasonable speed and traversing it with his front wheel in contact with the surface the sudden drop into the pothole did retard the forward movement of the bicycle and catapulted Chiasson onto the concrete parking lot of the Circle K store While Dr Dart attested that it was his opinion that the speed bump was defective a careful review of his conclusion actually supports the trial court s determination that it was the pothole located wholly in the Circle K parking lot that was the cause of Chiasson accident fact in s This conclusion was underscared by the deposition testimony of Chiasson Chiasson candidly admitted that on the night ofthe accident he did not see exactly what caused him to be catapulted from his bicycle he just knew that he hit something It was subsequent to his release from the hospital 14 days later that Chiasson returned to the accident site and based on his observations that day surmised that it must have been the pothole that abruptly stopped him Chiasson testified I knew when I got to the top of the speed bump there was a drop off And I went over the drop off and something stopped me abruptly I hit something like that was the side of a curb If I t wouldn have hit something that was the side of a curb I would have been alright Pm a pretty good athlete I would have ridden through 5 Although Chiasson adamantly asserts that because the speed bump was located on the vacant lot and therefore who had custody control or garde of the speed bump is an outstanding issue of material fact that precludes summary judgment he has offered no evidence to support a finding by the trier of fact that the cause of the accident was anything other than the pothole located on the fact in Circle K premises Thus the Soberts have demonstrated a lack of support for the fact in cause element of Chiasson claim s And because the cause of the fact in accident was the pothole located wholly on the Circle K premises the trial court correctly determined that the Soberts did not owe a duty to Chiasson arising from any interests they may have in the speed bump and did not err by granting summary judgment in their favor and dismissing them from this lawsuit 3 In their motion for summary judgment the Soberts averred a lack of evidence to support a finding of an unreasonable risk of harm see McCloud u Housing Authority of New Orleans 0094 2008 La App 4th Cir 6 987 So 360 362 entitled them to dismissal from this 08 11 2d litigation Chiasson offered the deposition testimony of Professional Land Surveyor Ralph Gibson who provided a topographic survey that was admitted into evidence The parties agreed that the survey was the most accurate depiction of the property line between the vacant lot and the Cixcle K premises lot But Gibson admitted that the survey was prepared for ause limited relative to tlus lawsuit and that he had not done a property boundary survey While Gibson believed that tYte survey depicting the line between the two lots was awfully close he conceded that the line could be inches off Moreover Gibson was ambivalent about testifying that the s survey lot line showing the vast majority of the speed bump located on the vacant lot and a small portion of the most southeastem part of the speed bump situated on the Circle K premises was more likely than not an accurate representation Thus we note that even if the entire speed bump were located on the vacant lot that Robert Sobert leased on the day of the accident whose use it was undisputed was as additional pazking for the bars in the area Chiasson could nevertheless not avoid dismissal of his claims against the Soberts by summary judgment While Dr Dart may have suggested that the speed bump was defective for vehicular use he did not specifically address Chiasson suse on a bicycle Chiasson testified that had he not encountered the pothole he would have cleared the speed bump Dr Dart criticism was of the height of the s speed bump from the western approach It is cleaz to us that the mechanics of a multi axle vehicle are sufficiently different from those of a bicycle to make that criticism inapplicable under the facts of this case In general the courts have found the social utility of speed bumps sufficient to warrant their presence See HeJlin u American Home Wildwood Estates L P 073 41 La App 2d Cir 7 936 So 226 231 and cases cited therein Thus 06 12 2d 32 whether most or all of the speed bump was located on the vacant lot for which Chiasson alleged that the Soberts and their respective tenants may have been liable mindfixl that Chiasson or approached the speed bump from the east and on a bicycle in our de novo review we conclude that the trial court correctly dismissed the Soberts from the lawsuit since they poinYed out s Chiasson lack of evidence to support a finding that the speed bump constituted an unreasonable risk of harm to support liability under La C arts 2315 2317 and 2317 1 6 DECREE For these reasons the trial court correctly granted summary judgment and dismissed the Soberts from this litigation appellant plaintiff Roddy Chiasson AFFIRMED 7 Appeal costs are assessed against
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