Walters v. City of W. Monroe

• Decision Date: 04 February 2015
• Docket Number: 49,502–CA.
• Citation: 162 So.3d 419
• Parties: Bernice WALTERS, Plaintiff–Appellant Defendants–Appellees v. CITY OF WEST MONROE, Crawford & Company and ABC Insurance Company, Defendants–Appellees.
• Court: Court of Appeal of Louisiana — District of US

162 So.3d 419

Bernice WALTERS, Plaintiff–Appellant Defendants–Appellees

v.CITY OF WEST MONROE, Crawford & Company and ABC Insurance Company, Defendants–Appellees.

49,502–CA.

Court of Appeal of Louisiana, Second Circuit.

Feb. 4, 2015.

Monique H. Fields, Baker, for Appellant.

Hayes, Harkey, Smith & Cascio, Monroe, By C. Joseph Roberts, III, Brandon W. Creekbaum, for Appellee, City of West Monroe.

Before WILLIAMS, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Opinion

CARAWAY, J.

The trial court rendered summary judgment in favor of the city-defendant after determining that no material issue of fact remained regarding the city's actual or constructive knowledge relating to a handicap ramp which dislodged as the elderly plaintiff grabbed it and fell to the ground. Finding that genuine issues of material fact remain, we reverse and remand.

Facts

On the afternoon of March 23, 2011, Bernice Walters,¹ accompanied by her son, Jerry Wright, took care of personal business at the West Monroe City Court facility.

Wright parked his van in a handicap parking space next to a concrete ramp with side rails. The ramp had a very slight slope because its function was merely to provide access up to the level of the parking lot's curb. Consequently, the ramp extended from the curb for almost a car length into the parking lot. On each side of the ramp as it ascended to the curb was a metal handrail. The handrails were secured by metal footings bolted into the edge of the concrete ramp. Because of this configuration of the ramp in the parking lot, Wright was able to park his vehicle immediately adjacent and parallel to the ramp and one of the handrails.

Walters entered and exited the building up and down the ramp without incident. She ambulated with the aid of a cane and her son and did not utilize either of the handrails. After exiting down the ramp, she positioned herself to enter the passenger side of her vehicle next to the handrail. She reached for the handrail for support to attempt to sit in her car, but the handrail gave way falling toward Walters. All three supporting poles and the aluminum handrail top detached from the three footings. Walters fell to the ground and sustained multiple injuries to her right side.

On March 27, 2012, Walters instituted suit against the City of West Monroe (“the City”) and its liability insurer seeking damages for the injuries she sustained in the accident. Specifically Walters alleged that the City failed to exercise reasonable care in properly maintaining and inspecting the handrail in question.

On December 9, 2013, the City sought summary judgment on the grounds that Walters would be unable to carry her burden of proof to show either that the handrail was unreasonably dangerous or that the City had actual or constructive notice of its condition. Walters opposed the summary judgment and urged that material issues of fact remained relating to the issues of actual and constructive notice. Walters also contended that the City failed to comply with the Americans with Disabilities Act (“ADA”) by failing to inspect the ramp.

In oral reasons for judgment, the court ruled in favor of the City, after determining that there “appears to be no evidence that could support plaintiff's claim that the City had actual or constructive notice” of the condition of the handrail. A signed judgment dismissing the suit followed and this appeal by Walters ensued.

On appeal, Walters argues that the trial court erred in not recognizing the ADA as a successful defense to summary judgment and in determining that no material issue of fact remained as to the issues of actual and constructive notice of the ramp condition.

Discussion

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07–1726 (La.2/26/08), 977 So.2d 880 ; Hakim v. O'Donnell, 49,140 (La.App.2d Cir.6/25/14), 144 So.3d 1179.

Appellate courts review summary judgments de novo, under the same criteria that govern a district court's consideration of whether summary judgment is appropriate. Hakim, supra; Benson v. State, 48,300 (La.App.2d Cir.10/9/13), 124 So.3d 544. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material if its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Hakim, supra.

Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The moving party bears the burden of proof. However, when he will not bear the burden of proof at trial on the matter before the court on summary judgment, the movant is not required to negate all essential elements of the adverse party's claim; he need only point out an absence of factual support for one or more essential elements of the adverse party's claim. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2) ; Hakim, supra.

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. La. C.C. art. 2317. Under the special statute applicable to public entities, La. R.S. 9:2800 (hereinafter “the Statute”), no person shall have a cause of action based on liability under Article 2317 against a public entity for damages caused by the condition of things in its care unless the public entity had actual or constructive notice of the particular 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. La. R.S. 9:2800(C).

To recover against a public entity for damages due to a defective thing, a plaintiff must prove that: (1) the thing which caused the damage was in the custody of the public entity; (2) the thing was defective due to a condition creating an unreasonable risk of harm; (3) the entity had actual or constructive notice of the condition yet failed to take corrective action within a reasonable period of time; and (4) the defect was a cause of plaintiff's harm. Jones v. Hawkins, 98–1259 (La.3/19/99), 731 So.2d 216 ; Benson, supra. Failure to meet any one statutory element will defeat a negligence claim against a public entity. Benson, supra.

In this case, the handrail was owned by and in the custody of the defendant. The second element of the inquiry concerns the unreasonable risk of harm posed by the condition of the handrail. With the railing appearing to be bolted to the concrete by three metal bars, its total collapse was an unusual and unexpected event that demonstrated its defective condition. Therefore, the City's defense turns on its lack of knowledge or constructive notice of the defective condition of the handrail.

The Statute provides for the requirement that “the public entity had actual or constructive notice of the particular vice or defect” in its property which caused the accident. La. R.S. 9:2800(C). This language in subpart C of the Statute uses the disjunction “or,” distinguishing two separate types of notice. Nevertheless, subpart D then gives a less than clear expression of constructive notice, as follows:

2800(D). Constructive notice shall mean the existence of facts which infer actual knowledge.

See, Linda McKinnis, Comment, Limiting Strict Liability of Governmental Defendants: The Notice Requirement of the 1985 Legislation, 46 La.L.Rev. 1197 (1986).

One interpretation of this statutory definition might be that constructive notice amounts only to a body of circumstantial evidence that proves actual knowledge from the strong inferences of that evidence. Such view, however, would make actual notice and constructive notice virtually the same, contrary to the clear distinction between the two expressed in subpart C. Moreover, such limited understanding of constructive notice runs contrary to the legislative expressions for actual and constructive notice set forth in the revision of the law for strict liability in 1996 with the enactment of Civil Code Article 2317.1.² As set forth in that article, the notice element requires that the custodian/owner “knew or, in the exercise of reasonable care, should have known” of the defect.

The expression for actual and constructive notice of Article 2317.1 is also employed in Civil Code Article 2322 for defects in buildings. Importantly, the Louisiana Supreme Court has equated the measure for negligence under subpart C of the Statute with Article 2322, including the substantive expression in that Civil Code article for constructive notice. Broussard v. State ex rel. Office of State Bldgs., 12–1238 (La.4/5/13), 113 So.3d 175, 183 n. 4. Accordingly, we will consider the public entity's constructive notice of a defect in its property under the same measure of Articles 2317.1 and 2322 of the Civil Code, i.e. whether the public entity “in the exercise of reasonable care, should have known” of the defect.

The documentation submitted in support of and opposition to the motion regarding the issue of notice included photographs of the repaired ramp and handrails, the broken handrail and footings which remained bolted to the concrete. Additionally, the following factual information was shown.

1) The City instructs employees to report any hazardous conditions which they may observe as they perform the duties of their job.

2) Representatives of the City of West Monroe had received no reports of any accident or injury involving the handicap ramp or

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