Dorsey v. Pier Landings Shreveport, L.L.C.
| Decision Date | 12 October 2022 |
| Docket Number | 54,761-CA |
| Citation | 349 So.3d 1103 |
| Parties | Tequilla DORSEY, Plaintiff-Appellant v. PIER LANDINGS SHREVEPORT, L.L.C. C/O Sachs Investing Company, The City of Shreveport, U.L. Coleman Company, Ltd, AmTrust Insurance Company of Kansas, Inc., and Associated Industries Insurance Company, Inc., Defendants-Appellees |
| Court | Court of Appeal of Louisiana — District of US |
JACK BAILEY LAW CORPORATION, By: Jack M. Bailey, Jr., Jack M. Bailey, III, Shreveport, Counsel for Appellant, Tequilla Dorsey
RON CHRISTOPHER STAMPS, LLC, By: Ron Christopher Stamps, Shreveport, Britney A. Green, Mansfield, Dale Lewis Sibley, Counsel for Appellee, City of Shreveport
Before COX, STEPHENS, and ROBINSON, JJ.
On October 1, 2015, plaintiff, Tequila Dorsey, while pushing her infant son in his stroller, was walking from her apartment in the Summer Trace Apartments to the Wal-Mart located in the Shreve City Shopping Center on Shreveport Barksdale Highway in Shreveport, Louisiana. There is no sidewalk, so she was walking in a grassy drainage area between the Pier Landing apartment complex and Knight Street. The area is frequently used by residents of the apartment complexes on Knight Street to access businesses located in the shopping center down the street. Ms. Dorsey fell in a hole in an open ditch area in front of the Pier Landing apartment complex while walking to Wal-Mart and sustained serious injuries, including a broken leg
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Ms. Dorsey filed suit against, inter alia , the City of Shreveport ("the City"), seeking damages for the injuries she received as a result of her fall. The subject hole was located on property owned and maintained by the City. A water/sewer line runs for some distance, including underneath the area in which the hole was located, and the City owns and maintains the water/sewer line. In her petition, Ms. Dorsey's allegations include that: the hole into which she fell and sustained her injuries was a dangerous condition (not open and obvious as it was covered with grass) which the City knew or should have known about and/or created on property in its custody and control; it was responsible for maintaining and keeping the property free of dangerous hazards; and, the City breached its duty to exercise reasonable care by performing inspections and taking other actions to protect her from injuries resulting from the hazardous condition they allowed to exist on their property.
The City answered Ms. Dorsey's petition, and both sides engaged in discovery. The City filed a motion for summary judgment, asserting that because Ms. Dorsey is unable to show that the City had actual or constructive notice of the hole into which she stepped, she is unable to prove all necessary elements of her claim against the City. Thus, based on the results of the parties’ discovery, there are no genuine issues of material fact as to the issue of the City's notice, and the City is entitled to summary judgment in its favor.
Ms. Dorsey opposed the City's motion for summary judgment and filed a cross-motion for summary judgment asking for judgment in her favor on the issue of liability (although she also sought an award of damages therein).
According to Ms. Dorsey, evidence produced by the City during discovery undisputedly showed that it had actual knowledge of a defect or problem in the water/sewage line as early as September 14, 2015. In support, she attached the affidavit and expert report of her witnesses who opined that such a defect can create sinkholes in ground above a water/sewer line, and that such a shift was the most likely cause of the sinkhole into which Ms. Dorsey fell. She argued the foreseeability of the risk to the public caused by the shifting of earth from a water leakage and compared the cost to repair against the risk of harm to individuals. She then pointed out that the City did not even attempt to make any repairs or warn the public of any issue posed by the faulty water/sewer line. Ms. Dorsey urged the trial court to find the City solely liable for the injuries and damages sustained by her and award her $250,000, inclusive of all damages and costs.
The City filed an opposition to Ms. Dorsey's motion for summary judgment, pointing out that none of the events that she claimed constituted "notice" of the hole were sufficient to put the City on notice of that alleged defect or condition. Three of the calls were about a sewage leak in a ditch near , but not at, 3131 Knight Street. Not only were these calls about a different issue (sewage), but they were at a different address altogether, urges the City. There is no documentation of anyone ever notifying the City of the existence of a hole. Furthermore, her expert's conclusion about a "sinkhole" is irrelevant to the case at hand, urges the City.
Following a hearing held on both motions for summary judgment, the trial court denied the motion for summary judgment filed by Ms. Dorsey and granted the motion for summary judgment filed by the City. It is from this adverse judgment that Ms. Dorsey has appealed.
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 ; Driver Pipeline Co. v. Cadeville Gas Storage, LLC , 49,375 (La. App. 2 Cir. 10/1/14), 150 So. 3d 492, writ denied , 14-2304 (La. 1/23/15), 159 So. 3d 1058. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. The procedure is favored and shall be construed to accomplish those ends. La. C.C.P. art. 966(A)(2).
A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A material fact is one that potentially ensures or precludes recovery, affects the ultimate success of the litigant, or determines the outcome of the dispute. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Jackson v. City of New Orleans , 12-2742, p. 6 (La. 1/28/14), 144 So. 3d 876, 882 ; Richard v. Hall , 03-1488, p. 5 (La. 4/23/04), 874 So. 2d 131, 137.
A genuine issue is one about which reasonable persons could disagree. Suire v. Lafayette City-Parish Consolidated Government , 04-1459, p. 11 (La. 4/12/05), 907 So. 2d 37,48, citing Smith v. Our Lady of the Lake Hospital, Inc. , 93-2512, p. 26 (La. 7/5/94), 639 So. 2d 730, 751 ; Franklin v. Dick , 51,479 (La. App. 2 Cir. 6/21/17), 224 So. 3d 1130. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Suire, supra ; Chanler v. Jamestown Insurance Co. , 51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied , 17-01251 (La. 10/27/17), 228 So. 3d 1230.
Louisiana C.C.P. art. 966(D)(1) provides:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements 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, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
When the motion for summary judgment is made and supported as provided in La. C.C.P. art. 967(A), the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise set forth in La. C.C.P. art. 967(A), must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). If he does not so respond, summary judgment, if appropriate, shall be rendered against him. Id.
The only documents that may be filed in support of or in opposition to a motion for summary judgment are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4). Louisiana C.C.P. art. 967(A) provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts s would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
Louisiana C.C.P. art. 966 (D)(2) provides:
The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.
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