Lucille Jefferson v. Nichols State University, Office of Risk Management for the State of Louisiana, Louisiana Attorney General, and the Board of Supervisors of the Unversity System of Louisiana ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1137
LUCILLE JEFFERSON
VERSUS
NICHOLS STATE UNIVERSITY, OFFICE OF RISK MANAGEMENT
FOR THE STATE OF LOUISIANA, LOUISIANA ATTORNEY GENERAL,
AND THE BOARD OF SUPERVISORS OF THE UNIVERSITY SYSTEM OF LOUISIANA
Decision Rendered: MAY 112020
APPEALED FROM THE
17th JUDICIAL DISTRICT COURT
LAFOURCHE PARISH, LOUISIANA
DOCKET NUMBER 125, 611, DIVISION C
HONORABLE JEROME J. BARBERA III, JUDGE PRO TEMPORE
Kervin W. Doyle Attorney for Plaintiff/Appellant
New Orleans, Louisiana Lucille Jefferson
Geri Broussard Baloney Attorneys for Defendant/ Appellee
Abril Southerland State of Louisiana through the Board
Jose Carlos M6ndez of Supervisors of the University
New Orleans, Louisiana of Louisiana System
BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.
McDONALD, 3.
A pedestrian visiting a college campus appeals the summary judgment dismissal
of her claims seeking recovery for injuries she sustained when she tripped and fell on
an uneven sidewalk. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the early afternoon of October 26, 2013, Lucille Jefferson was attending a
family event at Nicholls State University in Thibodaux, Louisiana, where her
granddaughter was a student. As she and several other family members were walking
on a sidewalk near the football field, Ms. Jefferson fell and was injured when she
tripped on an uneven section of the sidewalk where the elevation difference measured
about one and three- fourths to two inches. According to Ms. Jefferson, she did not see
the uneven sidewalk, because she was looking ahead to avoid bumping into others and
because of shadows made by the trees lining the sidewalk. Ms. Jefferson was treated
at a local emergency room on the day of the accident and released; she then saw an
orthopedist and underwent physical therapy for shoulder, knee, and back injuries for
several months.
Ms. Jefferson filed suit against the State of Louisiana, through the Board of
Supervisors of the University of Louisiana System ( the State), seeking recovery for her
injuries.' After answering the suit and denying liability, the State ultimately filed a
motion for summary judgment with supporting evidence seeking dismissal of Ms.
Jefferson' s claims. The State asserted that summary judgment was appropriate,
because Ms. Jefferson could not prove that the uneven sidewalk constituted an
unreasonable risk of harm or that the State had notice of the uneven sidewalk prior to
her accident. Ms. Jefferson opposed the summary judgment with supporting evidence.
After a hearing, the district court signed a judgment on June 11, 2019, granting the
State's motion and dismissing Ms. Jefferson' s petition with prejudice. In reasons for
1 The State' s answer states that the plaintiff's petition incorrectly named it as "[ Nicholls] State University,
Office of Risk Management for the State of Louisiana, Louisiana Attorney General, and the Board of
Supervisors of the University System of Louisiana[.]"
2
judgment, the district court indicated Ms. Jefferson had failed to demonstrate she could
carry her burden at trial that the uneven sidewalk was an unreasonable risk of harm.
Ms. Jefferson appeals the adverse judgment, asserting two assignments of error.
She first contends the district court erred by failing to consider her expert engineer's
affidavit. She next contends the district court erred in granting summary judgment,
because the evidence shows disputed factual issues regarding whether the uneven
sidewalk presented an unreasonable risk of harm and whether the State had
constructive knowledge of such. 2
APPLICABLE LAW
Appellate courts review the grant or denial of summary judgment de novo under
the same criteria governing the district court's consideration of whether summary
judgment is appropriate. Apache Corp. v. Talen ; Marine & Fuel, LLC, 17- 0714 ( La.
App. 1 Cir. 2/ 7/ 18), 242 So. 3d 619, 622. A court shall grant summary judgment if the
pleadings, memorandum, and admissible supporting documents show there is no
genuine issue of material fact and that the mover is entitled to judgment as a matter of
law. See La. C. C. P. art. 966A( 3) and ( 4); Apache Corp., 242 So. 3d at 622. The
summary judgment movant maintains the burden of proof. La. C. C. P. art. 966D( 1).
Nevertheless, if the movant will not bear the burden of proof at trial on the issue before
the court on the motion, his burden is satisfied by pointing out an absence of factual
support for one or more elements essential to the adverse party's claim, action, or
defense. Thereafter, the adverse party must produce factual support sufficient to
establish he will be able to satisfy his evidentiary burden of proof at trial. If the adverse
party fails to meet this burden, there is no genuine issue of material fact, and, if
appropriate, the court shall render summary judgment against him. La. C. C. P. arts.
966D( 1) and 9678.
Because it is the applicable substantive law that determines materiality, whether
a particular fact in dispute is material can be seen only in light of the substantive law
applicable to the case. Tilley v, City of Walker, 18- 1587 ( La. App. 1 Cir. 12/ 30/ 19),
z On February 18, 2020, the State filed a motion to consider its appellate brief as timely filed. This Court
considered the motion and denied it in open court on February 19, 2020.
3
So. 3d , 2019 WL 7343415 * 2. Under La. R. S. 9: 2800, to prove a public
entity is liable for damages caused by a defective thing, the plaintiff must establish: ( 1)
the public entity had custody or ownership of the defective thing; ( 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. See La. C. C. arts. 2317 and 2317. 1; La. R. S. 9: 2800; Chambers v.
Village of Moreauville, 11- 0898 ( La. 1/ 24/ 12), 85 So. 3d 593, 597. Failure to meet any
one of these statutory requirements will defeat a claim against the public entity. Lynch
v. City of Mandeville, 14- 1834 ( La. App. 1 Cir. 6/ 5/ 15), 2015 WL 3546068 * 3. Here,
Ms. Jefferson claims there are disputed factual issues regarding the second and third
requirements, i.e., the existence of an unreasonable risk of harm and constructive
notice. Because we conclude Ms. Jefferson has failed to produce factual support
sufficient to establish she will be able to prove the State had constructive notice of the
uneven sidewalk, we pretermit discussion of the unreasonable risk of harm issue,
including Ms. Jefferson' s first assignment of error, which is limited to whether the
district court failed to consider her expert' s affidavit on the unreasonable risk of harm
issue. Accord Yates v. Our Lady of the Angels Hospital, Inc., 19- 0661 ( La. App. 1 Cir.
2/ 20/ 20), 2020 WL 862167 * 3, n. 2.
Constructive notice is defined as the existence of facts that infer actual
knowledge. La. R. S. 9: 2800D. Ordinarily, to establish constructive notice, a plaintiff
must prove the defect causing the injury existed over a sufficient length of time to
establish that reasonable diligence would have led to its discovery and repair. Lynch,
2015 WL 3546068 at * 3. In support of its motion for summary judgment, the State
filed the affidavit of Brian Clausen, the Director of Safety at Nicholls State University, as
well as photographs showing the uneven sidewalk where Ms. Jefferson fell. Mr.
Clausen attested, and the photographs show, the size of the sidewalk elevation
deviation was between one and three- fourths and two inches. Mr. Clausen also stated
that there had been no prior reports of accidents on the sidewalk where Ms. Jefferson
fell, " despite thousands of students, faculty, and guests" walking on that same
2
sidewalk; nor were there any other falls there by others attending the Nicholls family
event on the day of Ms. Jefferson' s fall. He stated that no Nicholls representative
responsible for maintenance or for reporting dangerous conditions knew of the sidewalk
deviation before Ms. Jefferson' s fall. With Mr. Clausen' s affidavit, the State has pointed
to an absence of factual support to establish that the State had notice of the uneven
sidewalk's existence, an essential element of Ms. Jefferson' s claim. See La. R. S.
9: 28000; Davis v. City of Baton Rouge, 17- 1473 ( La. App. 1 Cir. 4/ 9/ 18), 2018 WL
1704095 * 5.
In opposition to the State' s motion, Ms. Jefferson filed the affidavit of Warren L.
Dietz Jr., a professional safety engineer. Regarding the State' s purported notice of the
uneven sidewalk, Mr. Dietz opined:
Based on the use and activity of the adjoining premises, the university
should have conducted regular and frequent inspections for tripping
hazards on this heavily used sidewalk. The approximate 1. 75 to 2. 0 -inch
size of the change of elevation in this case is sufficient enough to be
readily recognizable on reasonable and competent inspection. The
recommended practice for sidewalk inspections is to conduct inspections
on a yearly basis to identify defects subject to repair, and such inspections
should be done more frequently around schools and hospitals. A
competent inspection would have identified defects of the size recorded
here.
Defects of the type recorded here do not occur overnight. The
uplifting of the concrete sidewalk slab occurs only gradually. Even before
the defect reaches a height at which it is subject to repair, the condition
can be monitored on a regular basis. In this case, the uplifting would
have been identifiable years before the October 26, 2013 accident.
Mr. Dietz's above statements are merely speculative and do not create a
disputed issue as to the State' s constructive notice. It takes more than the existence
of a mere factual possibility to defeat summary judgment. See Talbert v. Restoration
Hardware, Inc., 17- 0986 ( La. App. 1 Cir. 5/ 31/ 18), 251 So. 3d 532, 539; see also Everett
v. Nicholls State University, 19- 0930 ( La. App. 1 Cir. 2/ 26/ 20), 2020 WL 913737 * 4 (" It
takes more than mere argument of a possibility to raise a genuine issue of fact.'.
Although Mr. Dietz states the university should have conducted "' frequent" inspections
of the sidewalk, Ms. Jefferson produced no evidence of how often the university
performed or did not perform inspections of its sidewalks. Further, a public entity's lack
k"
of a regular inspection procedure does not necessarily confer constructive knowledge of
defects in its streets, signs, and sidewalks. Clark v. EBRP Department of Public Works,
17- 1445 ( La. App. 1 Cir. 4/ 6/ 18), 248 So. 3d 409, 415; Williams v. Ruben Residential
Properties, LLC, 46, 040 ( La. App. 2 Cir. 3/ 2/ 11), 58 So. 3d 534, 541- 42.
Mr. Dietz also opines that the one and three- fourths to two inch elevation
deviation did not "occur overnight," would have " occurred gradually," and the "'uplifting"
of the sidewalk would have been " identifiable years before" Ms. Jefferson' s accident.
And, in his affidavit, Mr. Clausen himself opined that the sidewalk deviation was the
result of " natural causes such as Louisiana climate, settling Louisiana soil, and trees
close in proximity to the area[.]" These general observations regarding the gradual
development of the sidewalk elevation deviation fall short of the factual support
required to establish an evidentiary burden at trial. See Lynch, 2015 WL 3546068 * 4.
Even if the sidewalk gradually became uneven over many years, such is not proof of
how long the elevation that existed on the day Ms. Jefferson fell was there before her
fall. In other words, Mr. Dietz's general opinion that the uplifting of sidewalk would
have been identifiable for years is not proof that the specific one and three -fourth to
two inch deviation existed for days, weeks, months, one year, or more, such that the
State should have discovered and repaired it.
We find the reasoning of a similar case from the Second Circuit persuasive. In
Graham v. City of Shreveport, 44, 994 ( La. App. 2 Cir. 1/ 27/ 10), 31 So. 3d 526, 531- 32,
the Court rejected a plaintiff's attempt to establish a city' s constructive notice of an
uneven sidewalk ( where the elevation difference was no more than two inches) with
the use of photographs showing trees growing near the sidewalk. The Graham plaintiff
contended that roots of nearby trees underneath the sidewalk caused the concrete to
elevate over time. Id. at 528. The City presented evidence that there had been no
documented complaints about the subject sidewalk before Ms. Graham' s fall. Id.Finding that the photographs did not provide a clear inference that the growth of the
tree over a lengthy period of time had gradually caused the defect, and noting the
plaintiff had presented no other evidence regarding the length of time the problem
0
existed, the Graham court found there was insufficient circumstantial evidence to
demonstrate the city's constructive notice of the elevated sidewalk. Id. at 531- 32. In
this case, we similarly conclude that the existence of an elevated sidewalk near trees,
absent other evidence, is insufficient to demonstrate constructive notice of a defect.
See also Nettles v. Dean Ohices, LLC, 07- 0096 ( La. App. 1 Cir. 11/ 2/ 07), 2007 WL
3229159 * 2 ( reversing a judgment against a public entity due to a lack of facts to
establish constructive notice of an elevated sidewalk; and, rejecting the premise that
the defect was "' not a condition that occurred overnight" as sufficient to establish
constructive notice).
Thus, in light of the absence of prior accidents. or reports to the State involving
the subject sidewalk, and after reviewing the summary judgment evidence de novo,
particularly Mr. Dietz' s affidavit, we conclude Ms. Jefferson has failed to establish a
genuine issue of material fact that the sidewalk elevation in this cause existed for a
sufficient length of time to establish that reasonable diligence would have led to its
discovery and repair. See Talbert, 251 So. 3d at 539; Everett, 2020 WL 913737 * 4; and
Lynch, 2015 WL 3546068 at * 4- 5. Thus, summary judgment against her was proper.
See La. C. C. P. arts. 966D( 1) and 967B.
CONCLUSION
For the above reasons, we affirm the summary judgment in favor of the State of
Louisiana, through the Board of Supervisors of the University of Louisiana System, and
the dismissal of Lucille Jefferson' s petition with prejudice. We assess appeal costs
against Lucille Jefferson.
JUDGMENT AFFIRMED.
7