Court: Louisiana Court of Appeal; May 9, 2012; Louisiana; State Appellate Court
Plaintiffs Edwin and Hayes Labit appeal a trial court's summary judgment favoring the defendants, including The Palms Casino and associated parties, regarding a personal injury claim. The incident occurred on Christmas 2006 when Mrs. Labit fell on a wheel stop while returning to a van parked in a handicapped space. Despite adequate lighting, Mrs. Labit was uncertain about the fall's cause, and no witnesses confirmed the wheel stop's role in the incident. The plaintiffs alleged negligence by the defendants for inadequate lighting, lack of visibility markings, failure to warn about the tripping hazard, improper placement of the wheel stop, and not addressing prior tripping incidents. After depositions were taken, all defendants moved for summary judgment. The court granted these motions on September 9, 2011, leading to the current appeal. Louisiana law permits summary judgment when there is no genuine issue of material fact, placing the initial burden on the mover to present evidence. If successful, the opposing party must then provide evidence to dispute the claims; failure to do so results in granting the summary judgment.
In negligence actions, the initial legal question is whether the defendant owed a duty to the plaintiff. An owner or occupier of land must maintain the property in a reasonably safe condition, which includes discovering and addressing any hazardous conditions. The plaintiff can pursue claims based on negligence or strict liability, necessitating proof that the condition posed an unreasonable risk of harm and caused the injuries. Summary judgments are reviewed de novo by appellate courts, assessing for genuine issues of material fact and the movant's entitlement to judgment.
On appeal, plaintiffs challenge the trial court's dismissal of their claims against J. R Amusement, the Palms Casino, and Mr. Bosarge. J. R Amusement argues it deserves summary judgment, asserting the conditions were not unreasonably dangerous and that it lacked notice of any dangerous conditions. Supporting evidence includes testimonies from Mr. Eckert, who indicated reliance on Mr. Bosarge's expertise regarding safety standards, and Mr. Bosarge's assertion that J. R Amusement would not be expected to know about risks from unpainted wheel stops. Testimony from Ms. Brown also noted that she did not park correctly within the designated space. In contrast, plaintiffs contend that genuine material facts remain regarding whether J. R Amusement had a duty to paint the wheel stop or use a bollard, and whether the wheel stop was sufficiently obvious to Mrs. Labit.
Plaintiffs oppose J. R. Amusement's motion for summary judgment by presenting several depositions, including Ms. Brown's statement that Mrs. Labit had previously visited the Palms Casino, Mrs. Labit’s testimony about her prior visits, and Mr. Bosarge’s preference for painting wheel stops in pedestrian areas, noting the cost and the influence of lighting on safety. They also provide testimony from Charles Bienvenu regarding the parking lot's condition pre- and post-Hurricane Katrina, medical records, and an affidavit from engineer Mike Deharde with photographs of the wheel stop.
In response, J. R. Amusement argues for summary judgment, asserting the condition is not an unreasonable risk as it is commonly accepted and that they were unaware of any unreasonable danger. They cite Mrs. Labit’s deposition indicating she did not recall the wheel stop before her fall, Mr. Eckert’s reliance on a traffic engineer's expertise for safety compliance, and Mr. Bosarge's lack of prior safety concerns regarding unpainted wheel stops.
The document highlights a legal distinction between "unreasonably dangerous," a term in products liability, and "unreasonable risk of harm," the standard for negligence cases. Although these terms are often used interchangeably in case law, the case will focus on the latter standard. J. R. Amusement asserts that once they demonstrate a lack of factual support for the plaintiffs’ claims, the burden shifts to the plaintiffs to provide sufficient evidence to show a genuine issue of material fact exists. The plaintiffs must prove that the unpainted wheel stop constituted a defect and that J. R. Amusement knew or should have known it posed an unreasonable risk of harm, potentially through expert testimony or evidence of a history of similar accidents.
The plaintiffs relied solely on Mr. Bosarge's testimony regarding his preference to paint wheel stops, which does not establish that the condition posed an unreasonable risk of harm. Consequently, J. R. Amusement is entitled to summary judgment due to the lack of material evidence from the plaintiffs. The Palms Casino argues that the plaintiffs cannot meet their evidentiary burden to demonstrate the wheel stop's defectiveness or any knowledge of such a defect. Supporting its motion, the Palms Casino provided an affidavit from engineer Fred Vanderbrook, stating there is no legal requirement to paint wheel stops and affirming that theirs complied with all relevant building codes.
In response, the plaintiffs contend that the affidavit does not resolve disputed material facts and criticize the qualifications of Vanderbrook regarding applicable standards. They argue that mere compliance with building codes does not automatically ensure safety, asserting that a genuine issue exists about the wheel stop's danger level. However, the only evidence they provided is deposition testimony regarding the rental arrangement with J. R. Amusement.
The Palms Casino maintains that it is not obligated to prove the wheel stop's safety; rather, the plaintiffs must demonstrate that it poses an unreasonable risk of harm. The plaintiffs failed to produce any expert testimony or evidence showing that unpainted wheel stops create a hazardous condition, nor did they provide relevant design standards or studies to support their claims. Citing case law, the document emphasizes that summary judgment is warranted when there is no evidence demonstrating a risk of harm. Additionally, the plaintiffs’ inability to identify the cause of their fall negates any claims against the Palms Casino. Therefore, the court concludes that the Palms Casino is entitled to judgment as a matter of law.
Delmas Bosarge seeks summary judgment, arguing that the plaintiffs’ claims exceed the contract scope with J. R. Amusement and that they cannot prove he owed them a duty to perform unrequested services, such as painting wheel stops. He asserts his only obligation was to restore the parking lot to its pre-Katrina condition and that there is no evidence indicating that unpainted wheel stops are defective. Supporting his motion, he provides (1) his deposition as an experienced traffic engineer stating no building codes require painted wheel stops; (2) testimony from Mr. Eckert, who confirmed that Bosarge was hired solely to restripe the parking lot to its prior condition, and was satisfied with the work; and (3) plaintiffs’ written discovery responses.
In opposition, the plaintiffs argue that Bosarge had a duty to inform J. R. Amusement about the hazards of unpainted wheel stops, claiming his failure constituted a breach of duty to third parties like Mrs. Labit. They provide (1) Bosarge's deposition where he acknowledged that unpainted wheel stops in pedestrian pathways could pose tripping hazards; (2) Mr. Eckert's testimony about relying on subcontractor expertise for safety; and (3) an affidavit from traffic engineering expert David Hall, who opines that the wheel stops should have been painted yellow.
In response, Bosarge contends the plaintiffs’ arguments are irrelevant, asserting they failed to demonstrate any breach of duty. He maintains that the wheel stop was already unpainted prior to his work and that he was not tasked with performing traffic engineering duties. He emphasizes that the plaintiffs have not shown that unpainted wheel stops are defective and argues that the claim about painted wheel stops providing greater visibility is an obvious conclusion requiring no expert input. Although he acknowledges there’s no legal obligation for contractors to provide unrequested services, he recognizes that they must exercise ordinary care and avoid creating hazards while fulfilling their contractual duties.
In Lyncker v. Design Engineering, Inc., the plaintiffs did not provide sufficient evidence to support their claim that an unpainted wheel stop constituted a hazardous condition. The opinions of Mr. Hall and Mr. Bosarge were deemed insufficient as they did not establish that the unpainted wheel stop was unsafe. Consequently, Mr. Bosarge was granted summary judgment, as there was no genuine issue of material fact. The court affirmed the summary judgment in favor of defendants J. R Amusement Co. Inc., Delmas Bosarge, and The Palms Casino and Truck Stop, Inc. Judge Tobias dissented in part, noting that Mr. Labit had died, and his cause of action was inherited by his heirs. The plaintiffs failed to present evidence of prior tripping incidents. J. R Amusement opposed Mr. Bosarge’s motion, arguing that the wheel stop was not dangerous, and even if it were, Mr. Bosarge should be liable for its condition and failure to warn. Their opposition included testimony asserting that Mr. Bosarge found no defects and believed the wheel stop was not dangerous. Ultimately, due to the plaintiffs' lack of evidence regarding the wheel stop's danger, the court did not further examine J. R Amusement’s arguments against Mr. Bosarge.
