Brandy Barker Versus City of Grand Isle ( 2020 )

BRANDY BARKER NO. 19-C-451
VERSUS FIFTH CIRCUIT
CITY OF GRAND ISLE COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 786-834, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING
January 08, 2020
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.
REVERSED
MEJ
RAC
JJM
COUNSEL FOR PLAINTIFF/RESPONDENT,
BRANDY BARKER
David P. Vicknair
Keegan E. Chopin
Hope E. Hughes
COUNSEL FOR DEFENDANT/RELATOR,
TOWN OF GRAND ISLE
Christopher M. Moody
Albert D. Giraud
JOHNSON, J.
Relator, City of Grand Isle1 (“Grand Isle”), seeks review of the trial court’s
September 4, 2019 judgment denying its Motion for Summary Judgment against
Respondent/Plaintiff, Brandy Barker. Grand Isle prays that this Court grant its
motion for summary judgment and dismiss the matter, with prejudice, at plaintiff’s
cost. For the following reasons, we grant the writ application.
On April 13, 2018, Brandy Barker attended the Blessing of the Fleet Fair
organized by Grand Isle. Ms. Barker first used the restroom trailer at least 20
minutes after arriving at the fair. She testified that she wore flip-flops that night
that were “maybe a year old,” and recalled that the floors were a little wet, but “not
like the second time” she used the restroom. Ms. Barker went to use the restroom
trailer approximately two hours later and noticed that the floors were very wet.
She said that she could not recall whether or not the floor underneath the stall she
entered was wet. As she prepared to use the restroom, Ms. Barker slipped and fell.
As a result of the fall, Ms. Barker broke her tibia, fibia and ankle, and dislocated
her other ankle.
Grand Isle moved that it was entitled to summary judgment because of the
lack of evidence that Grand Isle had constructive notice of the restroom trailer
conditions and that the alleged defective condition was open and obvious, and
therefore not unreasonably dangerous. At the August 28, 2019 hearing on the
motion, Grand Isle argued that summary judgment was not precluded on the issue
of whether a condition was open and obvious. The trial judge noted that he has
been overturned before by this Court because “water on the floor is, difficult to
prove to be open and obvious to everyone and that that was a question of fact, and
that’s, that’s where I have to fall.”
1
We note that area is incorporated as “Town of Grand Isle” and case caption is incorrect.
19-C-451 1
Appellate courts review motions for summary judgment de novo, asking the
same questions as the trial court to determine whether summary judgment is
appropriate. Salathe v. Parish of Jefferson Through Department of Sewerage, 19-
251 (La.App. 5 Cir. 7/22/19); -- So.3d --, 2019 WL3294958 at **3 citing
Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773, 776. In determining
whether there are any genuine issues of material fact, courts cannot consider the
merits, make credibility determinations, evaluate testimony, or weigh evidence. Id.citing Davis v. Scottsdale Ins. Co., 13-255 (La. App. 5 Cir. 10/30/13); 128 So.3d
471, 475-77. “Under La. R.S. 9:2800, in order to prove a public entity is liable for
damages caused by a thing, the plaintiff must establish: (1) custody or ownership
of the defective thing by the public entity; (2) the defect created an unreasonable
risk of harm; (3) the public entity had actual or constructive notice of the defect;
(4) the public entity failed to take corrective action within a reasonable time; and
(5) causation.” Chambers v. Village of Moreauville, 11-898 (La. 1/24/12); 85
So.3d 593, 597.
Grand Isle urges that there is a lack of factual support for Ms. Barker’s claim
that it had constructive notice of the condition of the restroom trailer at the fair.
The plaintiff bears the burden at trial of proving actual or constructive notice.
White v. Select Specialty Hosp., 12-611 (La.App. 5 Cir. 3/13/13); 110 So.3d 1254,
1260-61. Constructive notice is defined by La. R.S. 9:2800 as the existence of
facts that infer actual knowledge. Jones v. Hawkins, 98-1259 (La. 3/19/99); 731
So.2d 216, 220.
In the instant case, Ms. Barker and the other affiants admit that they did not
advise Fair employees of the restroom trailer conditions. Two of the three
witnesses who accompanied Ms. Barker to the fair said in their sworn affidavits
that they went into the same restroom trailer one hour and one and a half hours
before Ms. Barker slipped and fell in the stall. All witnesses, including the one
19-C-451 2
who accompanied Ms. Barker to the restroom trailer the first time, approximately
thirty minutes after the group arrived at the fair, reported that the restroom floor
was wet with clear water/liquid. All three also noted that it had been raining for
several hours that night, and the Fair rides were shut down because of the weather.
If the mover will not bear the burden of proof at trial . . . 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 . . . 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. La. C.C.P 966(D)(1). Grand Isle argues that the wet
restroom trailer floor was an open and obvious condition, and therefore not
unreasonably dangerous. Based on the evidence presented, we agree. Ms. Barker
and her witnesses all testified that it was raining outside that night and the restroom
trailer floor was wet. The affiant that went to the same restroom trailer where Ms.
Barker’s accident took place approximately an hour and a half earlier testified that
the toilets were clearly backed up and had been overflowing, the floor of the
restroom trailer was very dirty, “muddy around the sink and general walking
spaces,” and full of water and that because the clear nature of the liquid she “could
not see whether the floors in the actual stalls were flooded [. . . but] assumed it was
slippery and wet due to the toilet paper sticking to the floors in the bathroom stall I
observed[.]”
Summary judgment is not precluded “[. . .] when no legal duty is owed
because the condition encountered is obvious and apparent to all and not
unreasonably dangerous.” Allen v. Lockwood, 14-1724 (La. 2/13/15); 156 So.3d
650, 653 citing Bufkin v. Felipe’s Louisiana, LLC, 14-0288 (La. 10/15/14); 171
So.3d 850, 861 n.3. “The determination of an unreasonable risk of harm is a
question of fact; however [. . .], our jurisprudence does not preclude the granting of
a motion for summary judgment in cases where the plaintiff is unable to produce
19-C-451 3
factual support for his or her claim that a complained-of condition or thing is
unreasonably dangerous. Bufkin, supra at 859.
Considering the foregoing, we find that the water on the restroom floor was
an open and obvious condition and, therefore, not unreasonably dangerous.
DECREE
Based on the foregoing reasons, we find that the Ms. Barker is unable to
prove the City of Grand Isle is liable under La. R.S. 9:2800 for damages. We grant
Grand Isle’s motion for summary judgment and Ms. Barker’s petition is dismissed,
without prejudice. All parties to bear their own costs on appeal.
REVERSED
19-C-451 4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 8, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-C-451
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
CHRISTOPHER M. MOODY (RELATOR) KEEGAN E. CHOPIN (RESPONDENT)
MAILED
ALBERT D. GIRAUD (RELATOR) DAVID P. VICKNAIR (RESPONDENT)
ATTORNEY AT LAW HOPE E. HUGHES (RESPONDENT)
1250 SW RAILROAD AVENUE ATTORNEYS AT LAW
SUITE 170 909 POYDRAS STREET
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NEW ORLEANS, LA 70112