Reitzell v. Pecanland Mall Associates, Ltd.

• Decision Date: 20 August 2003
• Docket Number: No. 37,524-CA.,37,524-CA.
• Citation: 852 So.2d 1229
• Parties: Kathleen REITZELL, Plaintiff-Appellant, v. PECANLAND MALL ASSOCIATES, LTD., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

852 So.2d 1229

Kathleen REITZELL, Plaintiff-Appellant, v. PECANLAND MALL ASSOCIATES, LTD., Defendant-Appellee.

No. 37,524-CA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 2003.

McLeod Verlander by Laurie J. Burkett, Monroe, for Appellant.

Plauché, Maselli, Landry, & Parkerson by Cherie T. Burlett, New Orleans, for Appellee, Southeast Service Corporation.

Davenport, Files & Kelly by Carey B. Underwood, Monroe, for Appellee, Southwest Shopping Centers Co.

Before BROWN, CARAWAY and TRAYLOR (Pro Tempore), JJ.

CARAWAY, J.

In this trip and fall case, the trial court granted summary judgment in favor of the mall owner and cleaning company after finding that a patched area at one of the mall entrances did not present an unreasonable risk of harm and that any unevenness in the location was open and apparent. We affirm.

Facts

On the Friday evening of March 12, 1999, Kathleen Reitzell did some after-work shopping at Pecanland Mall in Monroe, La. It had rained earlier in the day and the mall exits were wet. Reitzell exited the mall between 6:30 and 7:30 p.m. She crossed a walkway area to enter the parking lot by way of the slightly-declining handicap ramp. As Reitzell reached the end of the ramp, her right foot encountered the place of transition between the light beige tile walkway and the asphalt parking lot. At that point, some of the last tiles were missing, and the area where the tiles had been located was patched with a black asphalt-like substance. At that location as she began to enter the crosswalk area marked on the asphalt, Reitzell fell, injuring her right shoulder and lower back.

On March 9, 2000, Reitzell named the mall owner/operator, Southwest Shopping Centers, Co. ("Southwest"), and the mall cleaning service, Southeast Service Corporation ("Southeast"), in a suit for damages claiming that the damaged tile walkway and improperly applied asphalt presented a defect in the mall premises. Both defendants sought summary judgments on the grounds that Reitzell would be unable to show that an unreasonably dangerous condition existed. After hearing the arguments of counsel, the trial court granted the motions for summary judgment for the defendants. This appeal ensued.

Discussion

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 of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. This article was amended in 1996 to provide that the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon's Towing, 01-2837 (La.5/14/02), 817 So.2d 21. In 1997, the legislature enacted C.C.P. art. 966 C(2), which further clarified the burden of proof in summary judgment proceedings. This provision first places the burden of producing evidence for summary judgment on the mover (normally the defendant), who can ordinarily meet the burden by submitting affidavits or by pointing out the lack of factual support for an essential element of the opponent's case. 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 he or she will be able to meet the burden at trial. Racine, supra, citing Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.8 (1999). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Racine, supra. Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Gray v. Investment Cars Unlimited, Inc., 36,691 (La.App.2d Cir.1/29/03), 836 So.2d 1184,writ denied,03-0670 (La.5/2/03), 842 So.2d 1108.

La. C.C. art. 2317.1 provides that the owner or custodian of a thing is answerable for damages 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. This article effectively turns strict liability into negligence claims. Solito v. Horseshoe Entertainment, 36,667 (La. App.2d Cir.12/18/02), 834 So.2d 610. La. C.C. art. 2317.1 actions require proof that the defendant had custody of the thing causing the injury, that the thing contained a defect, this is, a condition creating an unreasonable risk of harm and that the defective condition caused plaintiff's injury. Davis v. Diamond Shamrock Refining and Marketing Co., 34,309 (La.App.2d Cir.12/6/00), 774 So.2d 1076.

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 societal rights and obligation, the social utility, and the cost and feasibility of repair. Simply put: The trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. The concept of whether a defect presents an unreasonable risk of harm, which requires a balancing of the risk and utility of the condition, is not a simple rule of law which can be applied mechanically to the facts of the case. Solito, supra.

The degree to which a danger is evident to a potential victim is one factor in determining whether the condition is unreasonably dangerous. Joseph v. City of New Orleans, 02-1996 (La.App. 4th Cir.3/5/03), 842 So.2d 420. See also, Williams v. City of Baton Rouge, 02-0682 (La.App. 1st Cir.3/28/03), 844 So.2d 360; Shavers v. City of Baton Rouge, 00-1682 (La.App. 1st Cir.9/28/01), 807 So.2d 883. The accident history of the defect is also a relevant consideration in the unreasonable risk evaluation. Reed, supra; Boyle v. Board of Sup'rs, Louisiana State University, 96-1158 (La.1/14/97), 685 So.2d 1080.

The...