Currie v. Scottsdale Indem. Co.
| Decision Date | 26 August 2013 |
| Docket Number | No. 2012 CA 1666.,2012 CA 1666. |
| Citation | 123 So.3d 742 |
| Parties | Patricia M. CURRIE v. SCOTTSDALE INDEMNITY COMPANY and Fairway Villas No. 1 Homeowners Association, Inc. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Jeff W. Watson, Baton Rouge, LA, for Plaintiff–Appellant, Patricia Currie.
Maria B. De Gracia, Tara L. Mason, Metairie, LA, for Defendants–Appellees, Scottsdale Insurance Company and Fairway Villas No. 1 Homeowners Association, Inc.
Before: KUHN, PETTIGREW, and McDONALD, JJ.
[1 Cir. 2]In this action seeking damages for injuries sustained as the result of an alleged unreasonable risk of harm created by a large water-filled hole in a sidewalk, the trial court granted the defendants' motion for summary judgment, and denied the plaintiff's cross motion for summary judgment, finding no genuine issues of material fact remained and that the plaintiff was unable to overcome the evidence establishing that the allegedly defective condition and circumstances that led to plaintiff's injuries were “open and obvious” such that the injury could have been avoided by a person exercising reasonable care and prudence; thus, precluding liability. The final judgment reflecting these findings was signed on December 4, 2012. This appeal by the plaintiff followed.
On April 4, 2013, during the pendency of the appeal, the Supreme Court rendered the decision of Broussard v. State, Office of State Buildings, 2012–1238 (La.4/5/13), 113 So.3d 175, which after careful review, we conclude clarified the existing and controlling law applicable to the burden of proof in a cause of action under very similar facts and circumstances. The opinion now very clearly mandates that whether an open and obvious condition is 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 clarification of the law, summary judgment is not proper when a genuine issue of material fact exists as to whether a duty was breached, in cases where the alleged liability arises from an open and obvious condition. Accordingly, applying the now existing interpretation and analysis mandated by the supreme court's decision, the trial court's judgment, granting summary judgment, must be reversed.
At the time of the relevant facts giving rise to this litigation, the plaintiff, sixty-nine year old Patricia M. Currie, resided in a condominium at 630–6 N. Beau Chene Drive, in Mandeville, Louisiana. The condominium was owned by Fairway Villas No. 1 Homeowners Association and insured by Scottsdale Insurance Company (defendants). Since 2002, by her own admission, Ms. Currie was aware that the sidewalk [1 Cir. 3]in front of her condominium had an uneven depression that caused water to accumulate whenever it rains.
After complaints about the condition of the sidewalk were made in 2002 to the defendants by Ms. Currie, among others, repairs were made that were originally to include the 16–foot portion of the paved walkway, including the section in front of Ms. Currie's unit. However, in October 2004, Ms. Currie sent written notice to the manager of the condominiums, notifying him that notwithstanding the repairs, an 8–foot portion containing an uneven depression still remained, consisting of a dip the width of at least one yard in diameter directly in front of her unit and leading to her parking place, which had not been repaired properly, and continued to collect water following rain. Ms. Currie noted that the condition of the sidewalk after a rain made safe passage difficult for her to navigate from the only walkway available to get to her parking place. (The evidence established that Ms. Currie's unit also had a back door; however, she contended that after a rain, that alternative route was equally impassable, as it required her to walk through the “muddy slop” in her yard, which also accumulated water during rain, and still ultimately required her to encounter the risk of slipping and falling.)
On December 30, 2009, the date of the incident giving rise to this litigation, it rained “profusely” all day, resulting in a large accumulation of water, approximately several inches deep in the yard-long sidewalk depression in front of Ms. Currie's unit. According to Ms. Currie, it was evening, she was wearing a floor-length dress and heeled shoes, as she was going to a New Year's party. Notwithstanding her knowledge of the condition of the sidewalk and the potential depth of the accumulated water, Ms. Currie acknowledged that she considered the alternate route of using her back door and navigating the muddy and wet yard untenable, as she was dressed up and did not want to soil her dress and shoes in the mud. By her own acknowledgment, Ms. Currie was walking quickly because it was raining, and she made the choice to attempt to “jump” the yard-long puddle to traverse the sidewalk. Unfortunately, Ms. Currie's attempt to traverse the sidewalk in this manner failed, she slipped and fell in the puddle, and sustained injuries, the recovery for which she instituted this action.
[1 Cir. 4]In a petition for damages filed November 16, 2010, Ms. Currie alleged she had no alternative walkway or path to her vehicle in the parking lot other than traversing the 8–foot portion of the sidewalk that she knew had accumulated several inches of water. She contended that she fell and injured herself attempting to traverse the puddle and further alleged these injuries were caused by the fault of the defendants by failing to maintain the premises in a safe condition, by failing to make repairs after several notices, by failing to inspect the area and remove any hazards, and by failing to provide her with a safe living environment and walkway.
Defendants answered the petition, denying any and all responsibility for the plaintiff's injuries, and affirmatively pleading victim fault, comparative fault, contributory negligence, and the fault of the plaintiff to mitigate damages, among other defenses. They alleged the plaintiff failed to use the requisite amount of care, that she failed to see what she should have seen under the circumstances, that she failed to observe an open and obvious condition, and that she committed other acts of personal negligence or fault in her choice to attempt to jump over what she knew to be a dangerous condition.
Motions for summary judgment were filed by both the defendants and the plaintiff. Both motions were heard on May 17, 2012, during which the evidence submitted consisted of the deposition of the plaintiff, copies of correspondence between Ms. Currie and the defendant association wherein she complained of the condition of the sidewalk, as well as responses to discovery requests. The only facts revealed by this evidence that differed from what had been represented in the parties' pleadings were: (1) that after falling, Ms. Currie was able to successfully walk back through the same puddle she had failed to successfully “jump” to get back to her condominium; and (2) that Ms. Currie did have a back door to her condominium leading to an alternate route to get to her vehicle in the parking lot, albeit, it too, required her to walk through muddy water.
As noted earlier, the trial court granted the defendants' summary judgment, and denied the plaintiff's cross motion. In so doing, the trial court noted that the condition of the sidewalk had existed for many years, and also that Ms. Currie acknowledged (and the [1 Cir. 5]evidence supported) that she was very aware of the condition of the sidewalk, as well as the danger it posed by the accumulation of water after a rain. Based thereon, the trial court concluded it was “an open and obvious condition that the defendant in this case had no duty to warn of what was an apparent risk of trying to get over the condition.”
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Lewis v. Morgan, 2011–2182, p. 3 (La.App. 1 Cir. 6/8/12), 93 So.3d 741, 743. It should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004–0806, p. 7 (La.6/25/04), 876 So.2d 764, 769 (per curiam). Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Lewis, 2011–2182 at 4, 93 So.3d at 744.
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at [1 Cir. 6]trial. If the adverse party fails to meet this burden, there is no...
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