Benson v. State

• Decision Date: 09 October 2013
• Docket Number: No. 48,300–CA.,48,300–CA.
• Parties: Doug BENSON and Dana Benson, Plaintiffs–Appellants v. The STATE of Louisiana, The Board of Trustees for State Colleges and Universities, The University of Louisiana System and The University of Louisiana at Monroe and The Ouachita Parish School Board, Defendants–Appellees.
• Court: Court of Appeal of Louisiana — District of US

124 So.3d 544

Doug BENSON and Dana Benson, Plaintiffs–Appellants

v.The STATE of Louisiana, The Board of Trustees for State Colleges and Universities, The University of Louisiana System and The University of Louisiana at Monroe and The Ouachita Parish School Board, Defendants–Appellees.

No. 48,300–CA.

Court of Appeal of Louisiana, Second Circuit.

Oct. 9, 2013.

Brian E. Crawford, Monroe, Jeffrey L. Dement, for Appellant.

Robert M. Baldwin, Johnny R. Huckabay, II, Monroe, for Appellee.

Before WILLIAMS, DREW and GARRETT, JJ.

WILLIAMS, J.

[2 Cir. 1]The plaintiffs, Douglas and Dana Benson, appeal a judgment denying their motion for partial summary judgment and granting summary judgment in favor of the defendants, State of Louisiana, the Board of Trustees for State Colleges and Universities, the University of Louisiana System and the University of Louisiana–Monroe (collectively referred to as “ULM”). The district court found that the plaintiffs failed to prove that ULM had actual or constructive knowledge of a defective seat. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

FACTS

On May 19, 2005, Douglas Benson (“Benson”) and his wife, Dana Benson, attended the West Monroe High School graduation ceremony of their daughter at the Fant–Ewing Coliseum on the ULM campus. The stadium has 7,000 fold-down seats and is the site of approximately 50 events per year. The seats have been in use since they were installed in 1970. Near the end of the ceremony, Benson's seat broke and he fell down to the floor, landing on his buttocks and hitting his head. Benson suffered injuries as a result of the fall.

The plaintiffs, Douglas and Dana Benson, filed a petition for damages against the defendants, ULM and the Ouachita Parish School Board.¹ Following discovery, the plaintiffs filed a motion for partial summary judgment alleging that ULM had constructive notice of the defective seat and failed to repair it. In response, ULM filed a motion for summary judgment on the ground that it did not have actual or constructive notice of [2 Cir. 2]the defective condition of the seat.

After a hearing on the motions for summary judgment, the district court issued written reasons, finding that the plaintiffs failed to satisfy their burden of proving that ULM had constructive notice of the defective condition of the seat. Thereafter, the court rendered judgment granting the defendants' motion for summary judgment, denying the plaintiffs' motion and dismissing their claims. The plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the district court erred in granting ULM's motion for summary judgment and denying their motion. Plaintiffs argue that they satisfied their burden of proving that ULM had constructive notice of the hazardous condition by presenting evidence showing that at the time of the accident the defective seat was 35 years old, that many other seats had broken and been removed and that ULM had never performed a physical inspection of the Coliseum seats.

We are liable for the damage caused by the things which are in our custody. LSA–C.C. art. 2317. 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. LSA–R.S. 9:2800. 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 [2 Cir. 3]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;Ricks v. City of Shreveport, 42,675 (La.App.2d Cir.10/24/07), 968 So.2d 863. Failure to meet any one statutory element will defeat a negligence claim against a public entity. Breitling v. Shreveport, 44,112 (La.App.2d Cir.5/13/09), 12 So.3d 457.

Constructive notice is defined as the existence of facts that imply actual knowledge. LSA–R.S. 9:2800(D). To prove constructive notice, plaintiffs must produce facts demonstrating that the defect existed for a sufficient period of time that it should have been discovered and repaired if the public entity had exercised reasonable diligence. Breitling, supra.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.6/3/09), 13 So.3d 1209,writ denied,2009–1491 (La.10/2/09), 18 So.3d 122;Whitaker v. City of Bossier City, 35,972 (La.App.2d Cir.4/5/02), 813 So.2d 1269. 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. LSA–C.C.P. art. 966(B).

The burden of proof remains with the mover. However, if the mover [2 Cir. 4]will not bear the burden of proof at trial on the matter before the court, then the mover is not required to negate every essential element of the adverse party's claim, action or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim or defense. If the adverse party fails to produce factual support to show that he will be able to satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. LSA–C.C.P. art. 966(C).

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Jones v. Estate of Santiago, 2003–1424 (La.4/14/04), 870 So.2d 1002;Hooker v. Wal–Mart Stores, Inc., 38,350 (La.App.2d Cir.4/7/04), 870 So.2d 1131,writ denied,2004–1420 (La.9/24/04), 882 So.2d 1142. One reason is that these subjective facts call for credibility evaluations and the weighing of testimony. Hooker, supra;Oaks v. Dupuy, 32,070 (La.App.2d Cir.8/18/99), 740 So.2d 263,writ not considered,99–2729 (La.11/24/99), 750 So.2d 993.

In the instant case, Steven Hollis presented deposition testimony that he began working in the maintenance department of ULM in 1994 and that in 2005 he was primarily working in the Coliseum. Hollis stated that his job duties involved replacing lightbulbs, making minor plumbing repairs, and fixing stadium chairs if possible.² Hollis testified that he inspected the [2 Cir. 5]stadium seating before each event by walking down each row and visually checking the seats. According to Hollis, if he saw a seat that did not “look right,” he tried to repair the chair and if it could not be fixed then he removed the seat from use. He estimated there were about 50 chairs out of use, including some rows of chairs. Hollis stated that his visual inspection takes approximately one hour to complete, that he was not aware of any formal inspection policy of ULM and that he does not keep any records documenting when seats have been repaired. Hollis testified that he used parts from out-of-service seats to repair other seats.

Hollis also testified that a bolt had sheared completely, causing the seat to collapse. Hollis stated that such a shear had occurred only three times in his experience and that most of the time the bolts had bent, causing the seat to visibly hang down. According to Hollis, when he saw a seat in that position during his inspection he changed the bolt. Hollis testified that this was the only incident he could recall in which a seat collapsed and injured a...