Bufkin v. Felipe's La., LLC

• Decision Date: 15 October 2014
• Docket Number: No. 2014–CC–0288.,2014–CC–0288.
• Parties: Roy BUFKIN, Jr. v. FELIPE'S LOUISIANA, LLC, et al.
• Court: Louisiana Supreme Court

171 So.3d 851

Roy BUFKIN, Jr.

v.FELIPE'S LOUISIANA, LLC, et al.

No. 2014–CC–0288.

Supreme Court of Louisiana.

Oct. 15, 2014.

Cotten Schmidt & Abbott, LLP, Byron Daniel Kitchens, New Orleans, LA, Robin Commons Dunford, Covington, LA, for Applicant.

Dominic N. Varrecchio, Barnett & Roniger, Stephanie McLaughlin, New Orleans, LA, Duplass, Zwain, Bourgeois, Pfister & Weinstock, AP, Sheryl Michelle Howard, Metairie, LA, for Respondent.

Opinion

HUGHES, J.

This writ presents the issue of whether a building contractor breached any legal duty owed to a pedestrian crossing a street next to the contractor's dumpster, who was struck by an oncoming bicyclist. After a thorough review of the record presented, we conclude that the dumpster was obvious and apparent, and not unreasonably dangerous; thus, there was no duty to warn of the clearly visible obstruction, and the district court erred in failing to grant summary judgment dismissing the contractor. Therefore, we reverse the district court judgment, render summary judgment in favor of the defendant/contractor, and remand to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This personal injury action arose on December 2, 2011, at approximately 4:30 in the afternoon, when Royce Bufkin, Jr. was walking through the French Quarter from a jewelry store on Royal Street to a wine shop on Chartres Street, via Conti Street. Outside a building under renovation at 622 Conti Street, Mr. Bufkin encountered a construction barrier blocking the sidewalk, which directed pedestrians to use the sidewalk on the other side of the street. At this location, there was also a large construction dumpster placed on several adjacent on-street parking spaces by Shamrock Construction Co., Inc. (“Shamrock”), in connection with renovations it had contracted to make at 622 Conti Street. While attempting to cross the street by the dumpster, Mr. Bufkin was hit by a bicyclist and injured.

At the time of the accident, Mr. Bufkin was walking toward the Mississippi River down Conti Street, which is a one-way street in the same direction. The bicyclist, who was working in the course and scope of his employment as a deliveryman for Felipe's Louisiana, LLC d/b/a Felipe's Taqueria Restaurant (“Felipe's”), was traveling in the wrong direction (away from the river) on Conti Street. Mr. Bufkin had stopped before crossing Conti, next to the dumpster, to allow two cars to pass (approaching from the direction of Lake Ponchartrain), but he failed to look to his right (in the direction of the river) before crossing the street, and he did not see the bicyclist approaching.

Mr. Bufkin filed the instant suit on March 6, 2012, naming as defendants: Felipe's; Felipe's insurer, Maryland Casualty Company; Shamrock; Lewis C. Ramel, Jr., the alleged owner of 622 Conti Street; and “Any Unidentified Owners of 622 Conti Street.”

On November 20, 2013 Shamrock filed a motion for summary judgment, contending that it was not negligent and that the plaintiff would be unable to establish that it owed a duty, as alleged. Following a December 13, 2013 hearing on Shamrock's motion for summary judgment, the district court denied the motion for summary judgment, reasoning that whether Shamrock posted a warning on its sidewalk-closure sign sufficient to notify the plaintiff of the “existence of problems” was a question of fact that precluded summary judgment.

The appellate court denied Shamrock's subsequent writ application. See Bufkin v. Felipe's Louisiana, LLC, 14–0051 (La.App. 4 Cir. 1/14/14) (unpublished). Thereafter, this court granted Shamrock's writ application. See Bufkin v. Felipe's Louisiana, LLC, 14–0288 (La.6/20/14), 141 So.3d 276. We conclude that the condition presented by the presence of Shamrock's clearly marked and visible construction dumpster, adjacent to a one-way French Quarter street, was obvious, apparent, and did not create an unreasonable risk of harm; thus, no duty was owed.

LAW AND ANALYSIS

This court applies a de novo standard of review in considering lower court rulings on summary judgment motions. Thus, we use the same criteria that govern the district court's consideration of whether summary judgment is appropriate. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, 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, pursuant to LSA–C.C.P. art. 966(B). See Catahoula Parish School Board v. Louisiana Machinery Rentals, LLC, 12–2504 (La.10/15/13), 124 So.3d 1065, 1071.

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See LSA–C.C.P. art. 966(C)(2) ; Schultz v. Guoth, 10–0343 (La.1/19/11), 57 So.3d 1002, 1006.

In its motion for summary judgment, Shamrock asserted that the plaintiff would be unable to establish the duty element of his negligence action. Shamrock argued that since the duty element is an essential element of the plaintiff's negligence action and there was no genuine issue of material fact, it was entitled to a judgment of dismissal as a matter of law. Shamrock asserted that it had no duty to warn the plaintiff to look both ways before crossing the street.

The plaintiff maintained that Shamrock was liable for his injuries because Shamrock had negligently created an unreasonable risk of harm to pedestrians by setting up a “blind spot” that prevented pedestrians from seeing oncoming traffic when crossing the street near Shamrock's dumpster. The plaintiff argued that Shamrock's sidewalk closure funneled pedestrians into crossing the street by the dumpster, and Shamrock's placement of the large dumpster immediately next to the street, without a buffer zone, created a line-of-sight obstruction for pedestrians of traffic on the street. The plaintiff further asserted that Shamrock's sign, which advised that the sidewalk was closed and that the sidewalk on the other side of the street should be used, should also have advised pedestrians that the dumpster created a blind spot and that the street should be crossed at the corner. Further, the plaintiff contended that Shamrock should have placed “fences or buffers around [the dumpster] as is customarily placed around such dumpsters,” contending that such a “buffer” would have “eliminated that blind spot had it been properly placed at that area of the construction site.”

The issue thus framed is whether the sidewalk condition, created by Shamrock's allegedly insufficient posted warnings and the placement of the large curbside dumpster, produced a vision obstruction for pedestrians crossing the street at that location that was unreasonably dangerous, and, if so, whether Shamrock owed a duty to place additional warnings on its signage and/or to construct a buffer zone that would mitigate against any vision obstruction created.

As we stated in Christy v. McCalla, 11–0366 (La.12/6/11), 79 So.3d 293, Louisiana courts have adopted a duty-risk analysis in determining whether liability exists under the facts of a particular case. Under this analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and (5) actual damages. Christy v. McCalla, 79 So.3d at 299 (citing Pinsonneault v. Merchants & Farmers Bank & Trust Company, 01–2217 (La.4/3/02), 816 So.2d 270, 275–76 ).

The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law. Milbert v. Answering Bureau, Inc., 13–0022 (La.6/28/13), 120 So.3d 678, 687–88.

In the instant case, by closing the sidewalk adjoining 622 Conti Street for its construction/renovation activities, which also extended into the abutting parking spaces where it placed its dumpster, Shamrock, acting on behalf of the building owner, effectively assumed custody of the sidewalk and abutting parking spaces. Thus, LSA–C.C. art. 2317 and 2317.1 are relevant to this proceeding, and provide:

Art. 2317. Acts of others and of things in custody

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. This, however, is to be understood with the following modifications.

Art. 2317.1. Damage caused by ruin, vice, or defect in things

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 have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The burden for tort liability arising from a defect in a public sidewalk is generally with the municipality, not the adjoining landowner, unless the abutting property owner negligently caused a defect in the sidewalk.See Randall v. Feducia, 507 So.2d 1237, 1239 (La.198...