Moore v. Oak Meadows Apartments

• Decision Date: 22 October 2008
• Docket Number: No. 43,620-CA.,43,620-CA.
• Citation: 997 So.2d 594
• Parties: Velma MOORE, Plaintiff-Appellant, v. OAK MEADOWS APARTMENTS, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

997 So.2d 594

Velma MOORE, Plaintiff-Appellant, v. OAK MEADOWS APARTMENTS, Defendant-Appellee.

No. 43,620-CA.

Court of Appeal of Louisiana, Second Circuit.

October 22, 2008.

The Smith Law Office, L.L.C. by Eskridge E. Smith, Jr., Bossier City, for Appellant.

Ungarino & Eckert, L.L.C. by J. Michael Nash, Shreveport, Brian D. Smith, for Appellee.

Before WILLIAMS, CARAWAY and MOORE, JJ.

MOORE, J.

The plaintiff fell and sustained injuries when she stepped in a large crack in the concrete driveway leading to and from her apartment unit in the Oak Meadow Apartments. She sued the complex, alleging that it had a duty to provide a sidewalk or pathway for residents to walk from the complex or to reasonably maintain the driveway and shoulder. The trial court granted the defendant's motion for summary judgment, but provided no oral or written reasons for judgment. For the following reasons, we reverse and remand the case for further proceedings.

Facts

According to her deposition, the plaintiff, Velma Strickland Moore, lived in Building "L" of the Oak Meadows Apartments off Centenary Boulevard in Shreveport for approximately one year prior to January 4, 2006, the date of the accident that gave rise to this lawsuit. Ms. Moore, who was 57, suffered from depression and schizophrenia. She moved to Oak Meadows Apartments so that she could walk to her therapy sessions. She is a widow who has been unemployed for at least 16 years before the accident.

On January 4, 2006, she was walking with her granddaughter, Brittany Yates, age 14, on the driveway that provided ingress and egress to the rear units of the complex. Ms. Moore was on her way to group therapy at the Family Life Development Center.

Ms. Moore stated that she had walked up and down that driveway "thousands" of times. She was aware that the driveway had several large cracks, breaks and holes in the middle of the drive. On this day, as she was walking up the hill on the left side of the drive, she said she saw an oncoming car fast approaching. Ms. Moore and her daughter started to move to the other side of the driveway to avoid the vehicle when she stepped in a hole in the driveway, rolled her ankle, and fell. The hole was big enough for her foot to fit into and was approximately 1"-1½" deep.

Ms. Moore stated that the left shoulder of the driveway was covered with shrubs that prevented her from walking on the shoulder, so she tried to move to the right side of the road in case the driver of the vehicle did not see her.

After she fell, her granddaughter sought help. A maintenance man helped her to the complex office where the manager called an ambulance. The paramedics arrived but would not take her to the hospital because they said her injury was not severe enough to require an ambulance (or perhaps emergency care). They advised her to see a doctor. The apartment manager told her to go to an orthopedist and send her the bill. Ms. Moore stated that her sister took her to Schumpert Hospital, where she was treated in the ER with a splint for her left foot and also her arm. They also advised her to see an orthopedist. She went to LSU Medical Center five days later to see an orthopedist. They put her in a boot cast and told her she had a fracture. For pain, she was advised to take Advil or Ibuprofren which she took for a couple of days. The scratches to her hand suffered when she fell healed in a couple of days, but Ms. Moore also complained of continued tingling in her fingers allegedly caused by nerve damage to her wrist. She denies prior injury or damage to her elbow and ulnar nerve.

Ms. Moore said the manager of the complex took pictures of the place in the driveway where she fell, but she has not seen the pictures. She was also aware, but had no first hand knowledge, that the cracks in the driveway have been filled with asphalt since the accident.

There was no oral argument at the hearing on the motion for summary judgment and the matter was submitted on briefs. The respective statements of facts are largely in agreement although the plaintiff disputed paragraphs four and five of the defendant's list of undisputed facts, namely, the plaintiff denies that prior to the accident she had personal knowledge of the particular hole or crack in the driveway that caused her to fall. Plaintiff did admit in her deposition that she knew that the driveway had numerous cracks in it because she walked on it daily.

The defendant argues that (1) the defect in the street was open and obvious, and Ms. Moore knew that the crack was in the street, and (2) it owed no duty to the plaintiff in these circumstances.

The trial court apparently agreed and granted the defendant's motion for summary judgment. On appeal, the plaintiff assigns a single error, namely, that the trial court erred in granting the summary judgment.

Discussion

We review the grant of a motion for summary judgment de novo. Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342 (La.1991); Steier v. Heller, 31,733 (La.App. 2 Cir. 05/05/99), 732 So.2d 787. A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, 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." La. C.C.P. art. 966(B). Affidavits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to be part of the record on appeal. LSA-C.C.P. art. 966; Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533 (La.2/20/04), 866 So.2d 228.

Both the plaintiff and the defendant expend a large portion of their arguments discussing the applicability of La. R.S. 32:216, which reads:

A. Where sidewalks are provided, it shall be unlawful for any pedestrian to walk along and upon an adjacent highway.

B. Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the left side of the highway or its shoulder, facing traffic which may approach from the opposite direction.

Both parties contend that the same principles in the statute apply to the private driveway of the apartment, but they disagree on what those principles mean. Their arguments can be reduced to the question of whether the plaintiff was at fault for attempting to cross from the left side of the driveway to the right side.

After consideration, we conclude that the statute is inapplicable to the facts of this case. La. R.S. 32:216—the requirement of walking on the left side of a highway—was enacted for the purpose of protecting pedestrians from highway drivers. By walking on the left side, a pedestrian can see oncoming vehicles and take whatever evasive action is necessary, and at the same time, the driver of the oncoming car can at least have some idea whether the pedestrian sees him coming. If the pedestrian is on the right side of the road with his back to the traffic approaching on his side, he will not see the car coming and may dart out into the road. Likewise, the driver cannot tell if the pedestrian sees him.

The statute was enacted for rural areas where people tend to live along the highways and frequently walk on or along the highway to neighboring businesses and residences, which creates a dangerous situation. See, e.g. Shafouk Nor El Din Hamza v. Bourgeois, 493 So.2d 112, (La.App. 5 Cir. 1986). More importantly, the purpose of the statute is to protect pedestrians from cars, not cracks or other defects in the pavement. In this case, it was not the fact that the plaintiff was walking on the left and moved to the right side of the driveway that caused her injuries. Nor was the plaintiff injured by an oncoming vehicle. In this instance, the plaintiff was injured because she fell after stepping in a large crack in the driveway.

The issues raised by the plaintiff's accident are governed by Art. 2317.1 of the Louisiana Civil Code. This article provides that:

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.

Under Art. 2317.1, in order for Ms. Moore to recover, she must prove by a preponderance of the evidence that a defect existed in the premises and the defect caused her damages. Further, Ms. Moore is required to prove that the owner or custodian of the complex knew or should have known of the defect that caused her damages, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise such reasonable care.¹ Heflin v. American Home Wildwood Estates, L.P., 41,073 (La.App. 2 Cir. 7/12/06), 936 So.2d 226.

A defect under Art. 2317.1 is a condition creating an "unreasonable risk of harm." Johnson v. City of Monroe, 38,388 (La.App. 2 Cir. 4/7/04), 870 So.2d 1105, writ denied, 2004-1130 (La.6/25/04), 876 So.2d 843. The fact that a pedestrian fell does not elevate automatically the condition of a street to that of an unreasonably dangerous defect. Boddie v. State, 27,313 (La.App. 2 Cir. 9/27/95), 661 So.2d 617; Clark v. Hartford Accident and Indemnity Company, 562 So.2d 50 (La.App. 3 Cir. 1990). To be a defect, the imperfection must pose an unreasonable risk of injury to persons exercising ordinary care and prudence. Boddie, supra.

There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and...