Barbara Valdery Versus State of Louisiana, Division of Administration, Office of State Buildings, and the Shaw Group, Inc. ( 2021 )

BARBARA VALDERY NO. 21-C-647
VERSUS FIFTH CIRCUIT
STATE OF LOUISIANA, DIVISION OF COURT OF APPEAL
ADMINISTRATION, OFFICE OF STATE
BUILDINGS, AND THE SHAW GROUP, INC. STATE OF LOUISIANA
December 08, 2021
Nancy F. Vega
Chief Deputy Clerk
IN RE STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF STATE BUILDINGS
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
MICHAEL P. MENTZ, DIVISION "F", NUMBER 719-193
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and John J. Molaison, Jr.
WRIT GRANTED
Relator/Defendant, the State of Louisiana, through the Division of
Administration, Office of State Buildings (“the State”), seeks supervisory review
of the trial court’s July 19, 2021 denial of its Motion for Summary Judgment.
Respondent/Plaintiff, Barbara Valdery, filed suit on September 8, 2012 against the
State (and the later dismissed Shaw Group, Inc.) alleging injuries resulting from a
fall into a hole on September 29, 2011 on a grassy area near the State’s Building at
2150 Westbank Expressway in Harvey, Louisiana. In her second amended petition
of April 30, 2013, the plaintiff alleged that the State failed to properly remediate
the site after it was used as a “FEMA trailer group site,” specifically failing to
properly remove all water and/or sewage pipes and leaving some pieces of jagged
pipes exposed at ground level.
The State filed a motion for summary judgment arguing that plaintiff could
not establish elements of her claim under La. R.S. 9:2800 because the State did not
have ownership, custody, or control over the PVC pipe alleged to cause the
plaintiff’s injury. The State further argued that the plaintiff cannot show that the
State had notice of the defective condition, and that the plaintiff cannot show that
the State knew or should have known of a dangerous condition on another
individual’s property.
We reviewed the judgment denying the motion for summary judgment de
novo to determine whether there is a genuine issue as to material fact and whether
the mover is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake
Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. A motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact. La. C.C.P. art. 966(A)(3).
The party opposing summary judgment cannot rest on the mere allegations of her
pleadings but must show that she has evidence that could satisfy her evidentiary
burden at trial. Mbarika v. Bd. of Sup'rs of Louisiana State Univ., 07-1136 (La.
App. 1 Cir. 6/6/08), 992 So.2d 551, 561, writ denied, 08-1490 (La. 10/3/08), 992
So.2d 1019.
In order to recover under La. R.S. § 9:2800, the plaintiff must prove that: (1)
the public entity had custody of the thing that caused the plaintiff’s injuries or
damages; (2) the thing was defective because it had a condition that created an
unreasonable risk of harm; (3) the public entity had actual or constructive
knowledge of the defect and did not take corrective measures within a reasonable
time; and (4) the defect in the thing was a cause-in-fact of the plaintiff's injuries.
Pitre v. Jefferson Par. Hosp. Serv. Dist. No. 2, 16-361 (La. App. 5 Cir. 12/28/16),
210 So.3d 502, 506, writ denied, 17-150 (La. 3/13/17), 216 So.3d 802. The State
presented evidence that the property where the alleged injury occurred is located
outside of the State’s property line and part of Jefferson Parish’s property/servitude
through the affidavit of Hugh McCurdy, registered land surveyor, and a land
survey he drafted of the property. The State alleged that the plaintiff cannot show
that the State had notice of the defective condition, or that it knew or should have
known of a dangerous condition on another individual’s property.
The plaintiff failed to produce any evidence that the State possessed actual
or constructive notice of the condition to be held liable under La. R.S. § 9:2800(C).
The plaintiff’s petition states that the State failed to inspect, and her opposition to
the motion for summary judgment points to the State employee Kerry Mangin’s
deposition testimony that he did not inspect the area. But the Louisiana Supreme
Court has held that failing to conduct inspections does not rise to the level of actual
or constructive knowledge, and “[t]he absence of a plan of inspection in no way
shows or implies that an employee of the appropriate public entity has actual
knowledge of a dangerous defect or condition.” Jones v. Hawkins, 98-1259 (La.
3/19/99), 731 So.2d 216, 220.
While a property owner can be found liable for defects to public rights-of-
way if the owner caused or created the defect, the plaintiff must produce some type
of evidence that the State created the condition. Cusimano v. Estate of Caillouet,
15-374, (La. App. 5 Cir. 12/23/15), 182 So.3d 1164, 1167-8. See also Busby v.
Texas Roadhouse Holdings, L.L.C., 3:16-CV-01467, 2019 WL 7167189, at *6
(W.D. La. Dec. 20, 2019). The only thing the plaintiff presented to show that the
State created the defect was the allegation in paragraph XII of the amended petition
that there was a failure to remove all water or sewage pipes/remediate the area. No
evidence was submitted to substantiate that claim. Furthermore, there was no
evidence to show the PVC pipe alleged to have caused the harm was related to the
sewage line place by FEMA during their lease with the State or that FEMA failed
to remediate the land in accordance with the State’s restoration requirements four
years prior to the plaintiff’s alleged injury. The plaintiff failed to produce any
evidence from Jefferson Parish regarding who else had been permitted to tie-in to
their sewage line in those four years.
The plaintiff failed to provide evidence that the State had actual or
constructive knowledge, or created, the defect or would have had notice. Despite
having nine years since the filing of this action, the plaintiff failed to produce
factual support sufficient to establish that she will be able to satisfy her evidentiary
burden of proof at trial. Thus, as the plaintiff cannot prove this element of her
case, we find that summary judgment was appropriate, and it is unnecessary to
address the State’s allegation regarding the element of their ownership, custody, or
control of the property.
Accordingly, we grant the writ application of the relator, State of Louisiana,
through the Division of Administration, Office of State Buildings, reverse the
decision of the trial court denying its motion for summary judgment, and grant the
motion for summary judgment, dismissing the claims of the respondent, Barbara
Valdery.
Gretna, Louisiana, this 8th day of December, 2021.
JJM
SMC
FHW
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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21-C-647
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24th Judicial District Court (Clerk)
Honorable Michael P. Mentz (DISTRICT JUDGE)
Amber M. Babin (Relator)
Wm. David Coffey (Relator)
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Hilary G. Gaudin (Respondent) Brian M. Ballay (Respondent) Thomas M. Brahney (Relator)
Elizabeth M. Gaudin (Respondent) Attorney at Law Assistant Attorney General
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