Labit v. Palms Casino & Truck Stop, Inc.

• Decision Date: 09 May 2012
• Docket Number: No. 2011–CA–1552.,2011–CA–1552.
• Court: Court of Appeal of Louisiana — District of US
• Parties: Lillie LABIT and Hayes Labit v. The PALMS CASINO & TRUCK STOP, INC. and J & R Amusement, Inc.

91 So.3d 540

Lillie LABIT and Hayes Labit
v.
The PALMS CASINO & TRUCK STOP, INC. and J & R Amusement, Inc.

No. 2011–CA–1552.

Court of Appeal of Louisiana,
Fourth Circuit.

May 9, 2012.

[91 So.3d 541]

Caleb H. Didriksen, III, Diane R. Cosenza, Didriksen Law Firm, New Orleans, LA, for Plaintiff/Appellant.

Freeman R. Matthews, Timothy R. Richardson, Usry Weeks & Matthews, Gerald A. Melchiode, Mary E. Lorenz, Galloway Johnson Tompkins Burr & Smith, New Orleans, LA, Michael R. Zsembik, Metairie, LA, for Defendant/Appellee.

(Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).

EDWIN A. LOMBARD, Judge.

[4 Cir. 1]The plaintiffs appeal the judgment of the trial court granting summary judgment in favor of the defendants. After a de novo review of the evidence in light of the relevant law, we affirm the trial court's judgment.

[91 So.3d 542]

Relevant Facts and Procedural History

On Christmas evening of 2006, Mrs. Labit delivered a gift and a meal to her daughter, Ms. Dinah Letellier, an employee of The Palms Casino & Truck Stop, Inc. (“the Palms Casino”) in St. Bernard Parish. She was driven to the Palms Casino in a 2000 Nissan Quest van by her daughter, Ms. Yvonne Brown; Mrs. Labit's husband, now deceased, accompanied them.¹ Ms. Brown pulled into a handicapped parking stall, but did not park squarely within the blue marked lines and, thus left approximately twenty-four (24) inches of the wheel stop in front of her van exposed on the right. The handicapped parking space in which she parked was to the right of the marked ramp/rise/walkway to gain entrance to the sidewalks leading to the Palms Casino.

Upon their return to the van, Mrs. Labit fell on the passenger side of the vehicle. Ms. Brown, however, was entering the driver's side of the vehicle and did [4 Cir. 2]not see her mother fall. As Mrs. Brown was opening her car door, Mrs. Labit fell on the wheel stop on the opposite side of the van. Subsequently in her deposition testimony, Mrs. Labit conceded that, although she had no trouble seeing the ground because of the lighting conditions, she was unsure of what caused the fall. Although she assumed it was because of the wheel stop because “they” told her so, no eyewitnesses came forward to testify as to whether the accident was caused by the wheel stop.

Mrs. Labit and her husband, Hayes Labit,² filed this personal injury action against the Palms Casino; the landowner, J & R Amusement Co., Inc. (“J & R Amusement”); and the subcontractor responsible for renovating the casino parking lot after Hurricane Katrina, Delmas Bosarge d/b/a Bosarge Striping Service (“Mr. Bosarge”). The plaintiffs allege that the defendants were negligent in: a) failing to provide sufficient lighting to illuminate the presence of the wheel stop in question; b) failing to paint or mark the wheel stop so that its presence would be visible to handicapped pedestrians; c) failing to otherwise warn handicapped persons that the wheel stop presented a tripping hazard; d) improperly placing a wheel stop in the handicapped parking space in question; and e) failing to remove the wheel stop or warn handicapped pedestrians of its presence after becoming aware of previous tripping incidents.³

[4 Cir. 3]After taking the depositions of Mrs. Labit, Mr. Bosarge, Darryl Eckert (the project manager for J & R Amusement), and Ms. Brown, each defendant filed a motion for summary judgment.

On July 28, 2011, the plaintiffs and the defendant, the Palms Casino, filed a joint motion for hearing on August 18, 2011 to be submitted on the record, without oral argument. On September 9, 2011, the trial court granted the motions for summary judgment in favor of all the defendants. The plaintiffs appeal.

Applicable Law

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together

[91 So.3d 543]

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.” La.Code Civ. Proc. Art. 966(B). The initial burden of producing evidence at the hearing on the motion for summary judgment is on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case. Schultz v. Guoth, 10–0343, p. 6 (La.1/19/11), 57 So.3d 1002, 1006, citing Samaha v. Rau, 07–1726, p. 4 (La.2/26/08), 977 So.2d 880, 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been supported by the moving party, the failure of the non-moving party to produce evidence of material factual dispute mandates the granting of the motion.” Id.; (citations omitted).

The threshold issue in any negligence action is whether the defendant owed [4 Cir. 4]the plaintiff a duty. Lemann v. Essen Lane Daiquiris, Inc., 05–1095, p. 8 (La.3/10/06), 923 So.2d 627, 633 (citations omitted). Whether a duty is owed is a question of law. Id. (citations omitted). As a general rule, the owner or occupier of land has a duty to keep the property in a reasonably safe condition. Pryor v. Iberia Parish School Bd., 10–1683, p. 3 (La.3/15/11), 60 So.3d 594, 596. This includes a duty to discover any unreasonably dangerous conditions on the premises and either correct the condition or warn potential victims of its existence. McCloud v. Housing Authority of New Orleans, 08–0094, p. 3 (La.App. 4 Cir. 6/11/08), 987 So.2d 360, 363.

There are two theories of liability available to a plaintiff who claims she was injured as a result of the condition of a thing: negligence, under Louisiana Civil Code Articles 2315 and 2316, and strict liability, under Louisiana Code Articles 2317 and 2317.1. Under both theories of liability, a plaintiff must prove that the condition of the thing presented an unreasonable risk of harm, or was defective, and that this condition of the thing was a cause-in-fact of her injuries. McCloud v. Housing Authority of New Orleans, 08–0094, p. 3, 987 So.2d 360 at 362.

“A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07–1726, pp. 3–4, 977 So.2d at 882–83.

Discussion

On appeal, the plaintiffs assign as error (1) the trial court erred when it dismissed the plaintiffs' claims against J & R Amusement; (2) the trial court erred when it dismissed the plaintiffs' claims against the Palms Casino; and (3) the trial court erred [4 Cir. 5]when it dismissed the plaintiffs' claims against Mr. Bosarge.

J & R Amusement's Motion for Summary Judgment against the Plaintiffs

J & R Amusement asserts that it is entitled to judgment as a matter of law because the plaintiffs will be unable to meet their burden of proof at trial as the conditions at issue were not unreasonably dangerous, and even if they were, J & R Amusement had no notice that said conditions were unreasonably dangerous or defective. In support of its motion, J & R Amusement submits (1) the deposition testimony of Mr. Eckert stating that J & R Amusement relied on the expertise of Mr.

[91 So.3d 544]

Bosarge to properly reconstruct the parking lot and to notify J & R Amusement should any part of the lot fail to meet the applicable safety standards; (2) the deposition of Mr. Bosarge, who testified that he would not have expected the owner (J & R Amusement) to know if there was anything unreasonably dangerous about having an unpainted wheel stop; (3) the deposition testimony of Ms. Brown stating that she did not park squarely within the parking stall; and (4) the affidavit of Mr. Eckert attesting that numerous parking lots in St. Bernard Parish contain unpainted wheel stops in configurations similar to J & R Amusement's property.

In opposition to J & R Amusement's motion for summary judgment, the plaintiffs assert summary judgment is inappropriate because genuine issues of material fact exist as to whether the wheel stop was unreasonably dangerous, specifically: (1) whether J & R Amusement owed a duty to the plaintiffs to paint the wheel stop or use a bollard; and (2) whether the wheel stop should have been obvious to Mrs. Labit. In support of their opposition, the plaintiffs submit (1) the deposition testimony of Ms. Brown stating that Mrs. Labit had been to the Palms Casino “a couple times” before the accident and when they arrived at the Palms [4 Cir. 6]Casino it was getting dark; (2) the deposition of Mrs. Labit testifying that she had been to the Palms Casino before the accident; (3) the deposition Mr. Bosarge testifying that it was his personal preference to paint a wheel stop in a location where there may be some pedestrian traffic, that painting one wheel stop would have cost $6.00, and that with respect to whether or not the wheel stop could create a dangerous condition, there were other factors involved in this particular instance, including the lighting; (4) the deposition of Charles Bienvenu, the corporate president of J & R Amusement and the Palms Casino, testifying that the parking lot at the Palms Casino was the same before and after Hurricane Katrina; (5) excerpts from Touro medical records; and (6) the affidavit of Mike Deharde, a registered professional engineer in Louisiana, with attached photographs of the wheel stop at issue.

In reply to the plaintiffs' opposition to the motion for summary judgment, J & R Amusement asserts that summary judgment is appropriate because the condition is not an unreasonable risk based upon common application and there was no reason for J & R Amusement to have known that this...