Sydney Graupmann and David Sims VS Nunamaker Family Limited Partnership and NFLP I, L.L.C.

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0580 SYDNEY GRAUPMANN AND DAVID SIMS VERSUS NUNAMAKER FAMILY LIMITED PARTNERSHIP AND NFLP I L C JudgmentRendered l oEC 62 3 On Appeal from the Nineteenth 7udicial District Court In and for the Parish of East Baton Rouge State of Louisiana G No C574755 Section 23 The Honorable William Morvant Judge Presiding John S McLindon Baton Rouge Louisiana Attorney for Plaintiff Appellant Graoella G Simmons Attorneys for Defendant Appellee Collin J LeBlanc Jack in the Box Inc David Sims Baton Rouge Louisiana James J Kokemor Michael M Thompson Attorneys for Defendant Appellee s Landry Landscape Inc David P Sirera Baton Rouge Louisiana BEFORE PARRO GUIDRY AND DRAKE JJ DRAKE J Appellant Plaintiff David Sims appeals a final judgment of the district court granting summary judgment in favor of Defendant Jack in the Box Appellee Inc Jack in the Box For the following reasons we reverse and remand BACKGROUND Mr Sims and his sister Sydney Graupmann both allege they were separately injured on October 28 2008 within a short period of time in the parldng lot of a Quik in the Box convenience store located on the corner of 7ack Stop eenwell Cn Springs Road and Sherwood Forest Boulevard in Baton Rouge Louisiana Ms Graupmann exited the vehicle and prior to entering the convenience store she allegedly tripped in a hole in a grassy area on the side ofthe convenience store and fell fracturing her left arm and injuring her knee After Mr Sims became aware of his sister accident he exited the vehicle and began s heading toward his sister who was lying on the ground Before he reached Ms aupmann GMr Sims tripped over a reinforcement bar re protruding from a bar cancrete curb in the parking lot of the Jack in the Box The curb had been broken into several pieces and rebar from the concrete curb was exposed Mr Sims sustained injuries to his knee and ribs In a joint petition for damages Mr Sims and Ms Graupmann filed suit against several defendants including Jack in the Box alleging theories of negligence and strict liability After answering and engaging in some discovery Jack in the Box filed a motion for partial summary judgment against Mr Sims Following a hearing on the motion the district court granted summary judgment in favor of Jack in the Box dismissing any and all claims by Mr Sims against Jack in In its Professional answer Jack in the Box asserted a third Part Y demand a gainst Landr Ys Landscape Inc Landry Landscape the company that performs s landscaping and maintenance service woxk for the convenience store where the plaintiffs suffered injury Landry sLandscape filed a motion for suimnary judgment which the district Lawn court denied on December 27 2011 2 the Box with prejudice at Mr Sims costs It is from this final judgment that Mr s Si7ns appeals LAW AND DISCUSSION Mr Sims alleges the district court erred in granting summary judgment because material issues of fact exist regarding whether the condition of the concrete curb presented an unreasonable risk ofharm Summarv JudQment The purpose of the summary judgment procedure is to enable the court to expedite the disposition of hearing cases and to put an end to useless and expensive litigation when as set forth in Louisiana Code of Civil Procedure article 966B it is properly determined by the court that there is no genuine issue as to any material fact See La C art 966B Omega Const v Thornco Inc 2007 La P 2 1806 pp A 1 Cir 8 994 So 2d 65 67 see also Babin v Winn Louisiana 08 21 Dixie 40 0078 Inc 2000 La 6 764 So 2d 37 39 00 30 Summary judgment is properly granted if the pleadings depositions answers to interrogatories and aclmissions on file together with the affidavits if any show that there is no gemuine issue of material fact and that the mover is entitled to judgment as a matter of law La C art 966B P Summary judgment is favored and is designed to secure the just speedy and inexpensive determination of every action La C art 966A P 2 A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time La C art P 1 966F Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in 2 Louisiana Code of Civil Procedure article 966 was recently amended by Acts 2013 No 1 to provide for submission and objections to evidence for motions for suirunary judgment These procedural amendments to Article 966 are not implicated in this appeal 391 3 accordance with La C art 966F Only evidence admitted for purposes of P 3 the motion for summary judgment may be considered by the court in its ruling on the motion La C art 966F P 2 The burden of proof remains with the movant however if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the movant burden on the motion does not s require him to negate all essential elements ofthe adverse party claim but rather s to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim Thereafter if the adverse party s fails to produce Factual support sufficient to establish that he will be able to satisfy hi evidentiary burden of proof at trial there is no genuine issue of material fact La C art 966C P 2 Once the motion for summary judgment has been properly supported by the moving party the failure of the non party to produce evidence of a moving material factual dispute mandates the granting of the motion La C art 967B P gh Pi v St Tammany Parish School Board 2007 La App 1 Cir 8 1856 08 21 994 So 2d 95 97 on rehearing writ denied 2008 La ll996 So 2316 08 21 2d 1113 When a motion for summary judgment is made and supported as provided above an adverse party may not rest on the mere allegations or denials of his pleading but his response by affidavits or as otherwise provided above must set forth specific facts showing that there is a genuine issue for trial If he does not s respond summary judgment if appropriate shall be rendered against him La P C art 967B Appellate courts review summary judgments de novo under the same criteria that govern the district court consideration of whether summary judgment is s appropriate Schultz v Guoth 2010 La 1 57 So 3d 1002 1005 0343 11 19 06 Because it is the applicable substantive law that determines materiality whether a 4 particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Christakis v Clipper Construction L 2012 La C 1638 App 1 Cir 4 117 So 3d 168 170 13 26 Unreasonable Risk ofHarm Open nnd Obvious Hazards On de novo review of the record before us we are unable to say that Jack in the Box established a right to judgment in its favar as a matter of law In reaching that conclusion we are obligated to consider whether a defect creates an unreasonable risk of harm by applying the guiding precepts recently set forth by the supreme court in Broussard v State ce of State Bldgs 2012 La 1238 13 5 4 113 So 3d 175 Mr Sims claims against Jack in the Box are rooted in Louisiana Civil s Code articles 2317 and 2317 Article 2317 states w are responsible not only 1 e for the damage occasioned by our own act but for that which is caused by the things we have in our custody Article 23171 specifically modifies liability under Article 2317 with respect to the owner ar custodian of a defective thing Article 2317 provides in pertinent part 1 3 In Broussard a UPS delivery dxiver sustained injuries when he admittedly and voluntarily chose to attempt to enter a building svisibly misaligned elevator while maneuvering a loaded dolly weighing approximately three hundred pounds by attempting to pull the dolly over a one to three elevation caused by the elevator misalignment After his attempt half inch s was unsuccessful the inertia created by the pull caused him to lose control of the load and forcefully pushed him into the back wa11 of the elevator causing him to sustain a serious back injury The victim sued and after a jury trial the jury awarded him approximately one and one half mIllion dollazs subject to reduction by the 38 fault the jury assigned to the victim Broussard 113 So 3d at 179 On appeal this Court had revexsed finding the jury conclusion that the elevatox offset s created an unreasonable risk of harm was enoneous because the defect was open and obvious and thus did not present a serious risk of harm In doing so this court noted that the victim could have avoided his injuries by acting more reasonably under the ciroumstances Broussard v State Office ofState Buildings Under Division ofAdminstration 2011 La App 1 Cir 0479 12 30 3 unpublished opinion That opinion based pximarily on a line of jurisprudence nerging efrom the circuit courts as well as the Supreme Court focused on the degxee to which a dangerous condition should be observed by a potential victim in determining whether a duty was owed Broussard v State Office ofState Buildings Under Division ofAdminstration 2011 0479 at pp 7 8 The Supreme Court granted certiorazi Broussard v State O of State ce Batiildings 2012 La 10 99 So 3d 50 to further examine under the manifest 1238 12 26 error doctrine whether a defective condition is more properly considered an open and obvious hazard where no duty is owed rather than an unreasonably dangerous condition where comparative fault is applicable Broussard 113 So 3d at 179 5 I The owner or custodian of a thing is answerable for damage occasioned by its ruin vice or defect only upon a showing that he knew or in the exercise of reasonable care should have known of the ruin vice or defect which caused the damage that the damage could e ha been prevented by the exercise of reasonable care and that he failed to exercise such reasonable care The general rule applicable to an owner or person having custody of immovable property is that he has a duty to keep such property in a reasonably safe condition He must discover any unreasonably dangerous condition on his premises and either correct the condition ar warn potential victims of its existence Smith v The Runnels Schools Inc 2004 La App 1 Cir 3 907 So 1329 OS 24 2ci 109 ll 2 This duty is the same under theories of negligence under Article 2315 ot strict liability under Article 2317 Under either theory the plaintiff has the 1 burden of proving that 1 the property which caused the damage was in the custody of the defendant 2 the property had a condition that created an unreasonable risk of harm to persons on the premises 3 the unreasonably dangerous condition was a cause in fact of the resulting injury and 4 the defendant had acYual or constructive knowledge of the risk Vincinnelli v Musso 0557 2001 La App 1 Cir 2 818 So 2d 163 165 writ denied 2002 02 27 0961 a7 I 6 818 So 2d 76 02 The Louisiana Supreme Court has described the question of whether a defect esents pi an unreasonable risk of harm as a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts Broussard 1 l3 So 3d at 183 citing Reed v Wal Stores Inc 97 La 3 7o8 Mart 1174 98 4 So 2d 362 364 As a mixed question of law and fact it is the fact role s finder either the jury or the court in a bench trialto detertnine whether a defect is ireasonably u dangerous Thus whether a defect presents an unreasonable risk of harm is a matter wed to the facts and must be determined in light of facts and circumstances of each particular case BroussaNd 113 So 3d at 183 To aid the 6 fact of trier in making this unscientific factual determination the supreme court has adopted a risk balancing test wherein the fact must balance the utility finder gravity and risk of harm against individual societal rights and obligations the social utility of the thing and the cost and feasibility of repair Broussard 113 So 3d at 184 The supreme court has synthesized this risk balancing test to a utility consideration of four pertinent factors 1 the utility of the complained of condition 2 the likelihood and magnitude of harm including the obviousness and apparentness of the condition 3 the cost of preventing the harm and 4 the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature Id The second prong of this risk inquiry focuses on whether the utility dangerous ar defective condition is obvious and apparent Generally a defendant does not have a duty to protect against an open and obvious hazard Id see also Pitre v Louisiana Tech ZJniv 95 La 5 6 So 2d 585 59L 1466 96 10 3 In order for a defect to be considered open and obvious the danger created by that defect must be apparent to all comers i everyone who may potentially e ericounter it Broussard 113 So 3d at 184 192 CaseNta v Wal StoYes Inc Mart 0853 11 La 6 90 So 3d 1042 1043 per curiam 12 22 If the facts and circumstances of a particular case show a dangerous condition should be open and obvious to all who encounter it then the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintif Broussard ll3 So 3d at 184 Thus while a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent the fact employing a risk finder utility balancing test determines which risks are unreasonable and whether those risks pose an open and obvious hazard In other words the fact determines finder whether defendant has breached a duty to keep its property in a reasonably safe 7 condition by failing to discover obviate or warn of a defect that presents an unreasonable risk of harm Id at 185 Here Mr Sims alleges the district court erred in granting summary judgment because material issues of fact exist regarding whether the condition of the concrete curb was open and obvious and if not Jack in the Box had a duty to warn against the unreasonable risk of harm presented by the allegedly defective concrete curb Jack in the Box argues that while the obviousness of a condition may be a factar in allocating fault between parties Louisiana law establishes that no duty is owed as a matter of law with respect to a condition which is obvious to al Mr Sims testified that he was injured by a curb that was fully visible to anyone who might be on the premises Thus based on the law and the evidence submitted in support of its motion for summary judgment Jack in the Box avers the ruling ofthe district court was correct In support of its motion for summary judgment Jack in the Box attached a transcript of the deposition of David Sims a statement of uncontested facts and copies of photographs of the allegedly defective concrete curb In his deposition Mr Sims alleged he tripped over a concrete curb with re sticking out and bar ffered sL injuries Mr Sims further testified that the condition of the curb was fully visible and that the accident occurred during the day in good weather Mr Sims ted st that there was a piece of rebar sticking out of the concrete curb laying flat oii the ground and that it appeared that someone had pummeled it with a sledge hammer and busted the curb up When asked whether there was anything obstructing his view of the concrete curb and rebar Mr Sims responded no Mr Sims also responded affirmatively that it was a shot from his vehicle to straight where his sister had fallen The district court ultimately granted summary judgment in favor of Jack in the Box on the basis that the concrete curb over which r N Sims tripped was not unreasonably dangerous because the condition of the 8 concrete curb was open and obvious to the plaintiff as supported by the plaintiff s own testimony that he actually saw the defective curb prior to suffering injury Recently in Broussard the supreme court held as follows We have described the question of whether a defect presents an unreasonable risk of harm as a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts Reed v Wal Stores Inc 97 p 4 3 708 So 2d Mart 1174 La 4 98 362 364 quoting Tillman v Johnson 612 So 2d 70 La 1993 per curiam As a mixed question of law and fact it is the fact s finder either role the jury or the court in a bench trial determine to whether a defect is unreasonably dangerous Thus whether a defect presents an unreasonable risk of harm is a matter wed to the facts and must be determined in light of facts and circumstances of each particular case E Dupree v City of New Orleans 99 pp g 3651 13 14 La 8765 So 2d 1002 1012 citarion omitted Reed 97 00 31 1174 at p 4 708 So 2d at 364 In order to avoid further overlap between the jury role as fact s finder and the judge role as lawgiver we find the analytic framework s for evaluating an unreasonable risk of harm is properly classified as a determination of whether a defendant breached a duty owed rather than a determination of whether a duty is owed ab initia lt is axiomatic that the issue of whether a duty is owed is a question of law and the issue of whether a defendant has breached a duty owed is a question of fact E Brewer v J Hunt Transp Inc 09 p g B 1408 14 La 3 35 So 3d 230 240 citing Mundy v Dep of Health 10 16 t and Human Res 620 So 2d 811 813 La 1993 The judge decides the former and the fact finderjudge or jury the latter In decides the usual case where the duty owed depends upon the circumstances of the particular case analysis of the defendant conduct should be s done in terms of no liability or no breach of duty Pitre 95 1466 at p 22 673 So 2d at 596 Lemmon J concurring Because the determination of whether a defect is unreasonably dangerous necessarily involves a myriad of factual considerations varying from case to case Reed 97 at p 4 708 So 2d at 364 the cost 1174 benefit analysis employed by the fact in making this determination is finder more properly associated with the breach rather than the duty element of our duty analysis See Maraist et al Answering a risk Fool 70 LA at 1120 O might persuasively argue that REV L ne the cost analysis used to determine whether a risk is benefit reasonable or unreasonable is the heart of the breach decision and is one that should be conducted by the fact rather than by the finder court Thus while a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent the fact finder employing a risk balancing test deterinines which risks are utility unreasonable and whether those risks pose an open and obvious hazard In other words the fact determines whether defendant finder has breached a duty to keep its property in a reasonably safe condition 9 I by failing to discover obviate or warn of a defect that presents an unreasonable risk of harm oussard Br 113 So 3d at 183 and 185 Footnotes omitted 84 Broussard was recently interpreted by this court in Currie v Scottsdale Inderrznity Company 2012 La App 1 Cir 8 123 So 3d 742 where 1666 13 26 this court was called upon to review cross motions far summary judgment on zether w a sidewalk with an uneven depression causing rain water to accumulate created an unreasonable risk of harm After discussing the precepts in Broussard as set forth above this court found that the trial court which granted summary judgment in favor of the defendant based on a finding that the sidewalk defect was ari open and obvious defect erred stating as follows The issue of whether the depression in the sidewalk in this case was an open and obvious condition such that liability may attach to the landowner if the condition presented an unreasonable risk of harm and whether indeed the condition presented an unreasonable risk of harm under the particular facts and circumstances of this case are all genuine issues of material fact remaining and properly determined by the trier of fact employing a duty risk analysis And again guided by the supreme court Broussard opinion this determination will include s inquiry regarding the social utility of the sidewalk at issue the likelihood and magnitude of harm including whether it was an open and obvious condition the cost of preventing the harm and the nature of the plaintiffs activity including any comparative fault that may attach to the plaintiff s conduct Currie 123 So 3d at 747 Thus as set forth in Currie the law now clearly mandates that the analysis of whether an open and obvious defect is an wireasonable risk of harm is properly a determination of fact that takes into consideration the victim own comparative fault among other factors and s accordingly is not proper for summary judgment Currie 123 So 3d at 746 In a trial of this matter Mr Sims has the burden of proof to demonstrate liability Through its motion for summary judgment Jack in the Box provided the district court with some evidence to support its entitlement to summary relief Therefore the burden of proof shifted under Louisiana Code of Civil Procedure 10 article 966C to Mr Sims to come forward with affirmative evidence sufficient 2 to demonstrate a likelihood that he would be able to meet his burden of proof at triaL The law as stated by the supreme court in Broussard and this court in rrie Ci now very clearly mandates that whether an open and obvious condition presents an unreasonable risk of harm such that liability may be imposed is not a determination of whether a duty exists a question of law but rather it is a determination of whether that duty was breached a question of fact Given that summary judgment is not proper when a genuine issue of material fact exists as to wliether a duty was breached in cases where the alleged liability arises from an en o and obvious condition Currie 123 So 3d at 743 Accordingly we find that th district court erred in granting summary judgment in favor of Jack in the Box and in dismissing Mr Sims case with prejudice s DECREE For the foregoing reasons the summary judgment rendered by the district court in favor of Defendant Jack in the Box Inc is hereby reversed Appellee W e remand this matter to the district court for further proceedings consistent herein Costs ofthis appeal are cast to Defendant Jack in the Box Inc Appellee REVERSED AND REMANDED I 11

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