Tramuta v. Lakeside Plaza, L. L.C.

• Decision Date: 25 February 2015
• Docket Number: No. 14–CA–410.,14–CA–410.
• Citation: 168 So.3d 775
• Parties: Salvadore TRAMUTA and Joan M. Tramuta v. LAKESIDE PLAZA, L.L.C., Robert A. Caplan, and XYZ Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

168 So.3d 775

Salvadore TRAMUTA and Joan M. Tramuta

v.LAKESIDE PLAZA, L.L.C., Robert A. Caplan, and XYZ Insurance Company.

No. 14–CA–410.

Court of Appeal of Louisiana, Fifth Circuit.

Feb. 25, 2015.

James E. Shields, Sr., Attorney at Law, Gretna, Louisiana, for Plaintiff/Appellant.

Christopher P. Lawler, Attorney at Law, Metairie, Louisiana, for Defendants/Appellee.

Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and ROBERT M. MURPHY.

Opinion

ROBERT A. CHAISSON, Judge.

This is a suit for personal injuries sustained when Salvadore Tramuta fell on the defendants' property as the result of an allegedly defective condition of that property. Mr. Tramuta's wife, Joan M. Tramuta, appeals a summary judgment dismissing the suit, which was granted in favor of the defendants.¹ Upon de novo review, for the following reasons, we vacate the trial court's grant of summary judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Lakeside Plaza, L.L.C. (“Lakeside”) is the owner of a strip shopping mall that houses approximately eight stores, including Jeff's Haberdashery. The mall is constructed such that all eight stores front on a raised, covered walkway, from which customers can step down into the parking lot, which runs the entire length of the mall. The parking lot contains demarcated parking spaces that front on, and are perpendicular to, the raised walkway. Additionally, each parking space contains a yellow parking bumper fixed in place and parallel to the raised walkway. Over time, due to soil subsidence under the parking lot, the difference in elevation between the parking lot and the raised walkway increased to the point where it

presented a problem for customers to step up to, or down from, the raised walkway. In response, in 2005, Lakeside had a single concrete step, 285 feet in length and running almost the entire length of the mall, added to the front of the raised walkway, to enable customers to enter (or exit) the mall directly from (or to) the parking lot by taking two shorter steps up (or down), rather than one higher one. When Lakeside had the step added, it did not relocate the stationary parking bumpers away from the step, resulting in the amount of level stepping space between the parking bumpers and the raised walkway being reduced by the width of the added step.

In 2008, Mr. Tramuta was leaving Jeff's Haberdashery holding a clothing bag over his shoulder with his left hand, and reaching into his pocket for his car keys with his right hand, when he fell while descending from the raised walkway to the parking lot. Mr. Tramuta sustained serious personal injuries in this fall.

The Tramutas filed suit against Lakeside alleging that a defective condition of its premises caused Mr. Tramuta's fall.² Specifically, Mr. Tramuta's theory of his case is that while utilizing the added step to descend from the raised walkway to the parking lot, “the front of his foot was wedged and/or snagged between a parking bumper and the step.”

Lakeside filed a Motion for Summary Judgment arguing that Mr. Tramuta is unable to carry his burden of proof on a number of elements of his claim, namely, he is unable to prove what caused him to fall, he is unable to prove a defective condition in the premises, and, if such defective condition existed, he is unable to prove that Lakeside had knowledge of the condition. Lakeside further argues that if such defective condition existed, it was “open and obvious to all,” thus

precluding recovery by the Tramutas.³ The trial court granted Lakeside's Motion for Summary Judgment. It is from this judgment that Mrs. Tramuta appeals.⁴ For resolution of this appeal, we only address Mrs. Tramuta's assignments of error that the trial court erred in finding no genuine issues of material fact and therefore erred in granting Lakeside's Motion for Summary Judgment.

DISCUSSION

This Court, in Int'l Ass'n of Heat & Frost Insulators v. Paternostro, 13–1006 (La.App. 5 Cir. 05/28/14), 142 So.3d 284, 287–288, recently set forth the standards upon which courts grant and review summary judgments, to-wit:

A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. Zeringue v. O'Brien Transp., Inc., 05–760 (La.App. 5 Cir. 4/11/06), 931 So.2d 377, 379, writ denied, 06–1107 (La.9/1/06), 936 So.2d 205. Summary judgments are favored in the law and the rules should be liberally applied. Id. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. Id.

Appellate courts review a judgment granting a motion for summary judgment on a de novo basis. Gutierrez v. State Farm Fire & Cas. Ins. Co., 13–341 (La.App. 5 Cir. 10/30/13), 128 So.3d 509, 511. Thus, this Court uses the same criteria as the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id.

Procedurally, the court's first task on a motion for summary judgment is determining whether the moving party's supporting documents—pleadings, depositions, answers to interrogatories, admissions and affidavits are sufficient to resolve all material factual issues. Murphy v. L & L Marine Transp., Inc., 97–33 (La.App. 5 Cir. 5/28/97), 695 So.2d 1045, 1047 (citing La. C.C.P. art. 966(B) ). To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact. Id. In making this determination, the mover's supporting documents must be closely scrutinized and the non-mover's indulgently treated. Id. Since the moving party bears the burden of proving the lack of a material issue of fact, inferences to be drawn from the underlying facts before the court must be viewed in light most favorable to the non-moving party. Id.

If the court determines that the moving party has met this onerous burden, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Murphy, supra. Louisiana Code of Civil Procedure article 967 outlines the non-moving party's burden of production as follows:

When a motion for summary judgment is made and supported ..., an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Summary judgment is appropriate when all the relevant facts are marshalled before the court, the marshalled facts are undisputed, and the only issue is the ultimate conclusion to be drawn from those facts. Id.

A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Luther v. IOM Co. LLC, 13–0353 (La.10/15/13), 130 So.3d 817, 822. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id. Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id.

The Tramutas have alleged that a defective condition of Lakeside's premises caused Mr. Tramuta's fall. Thus, the substantive law applicable to this case is that found in La. C.C. art. 2317 and 2322. Article 2317 states “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by ... the things we have in our custody.” Article 2322 specifically modifies liability

under article 2317 with respect to the owner of a ruinous building or a defective component part of that building. Article 2322 provides, in pertinent part:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice of defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice of 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 ...

Under article 2322, a plaintiff must prove the following elements to hold the owner of a building liable for the damages caused by the building's ruin or a defective component: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation. La. C.C. art. 2322 ; Broussard v. State, 12–1238 (La.4/5/13), 113 So.3d 175, 182–183.⁵ Additionally, our jurisprudence requires that the ruinous building or its defective component part create an unreasonable risk of harm. Id. at 183, citing Entrevia v. Hood, 427 So.2d 1146, 1148–49 (La.1983 ).

Lakeside, in its Motion for Summary Judgment, contends that there are no genuine issues of material fact, and that the allegedly undisputed facts establish that the Tramutas will be unable to prove either causation, a defective condition in the premises that presented an unreasonable risk of harm, or defendants' knowledge of such condition.

Causation

Neither party has identified any witnesses who observed Mr. Tramuta's fall. Therefore, the only evidence by which plaintiff can establish what caused his fall will be the testimony of Mr. Tramuta himself. Inasmuch as Mr. Tramuta is now deceased, the only evidence available from Mr. Tramuta is his deposition and affidavit testimony.

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