Court: Louisiana Court of Appeal; May 15, 2019; Louisiana; State Appellate Court
Nicholas Thompson appeals the summary judgment favoring Richards Clearview, LLC (Clearview Mall), which dismissed his slip-and-fall lawsuit. On March 15, 2016, Thompson fell while stepping off a red-painted curb at Clearview Mall, sustaining a serious ankle injury. He claimed the curb was defective and unreasonably dangerous, alleging Clearview Mall's negligence for violating building codes regarding the curb's height and walkway space. Clearview Mall countered with a motion for summary judgment, arguing the curb was open and obvious, and Thompson's fall resulted from his misjudgment. The trial court agreed, finding the curb well-marked and Thompson inattentive, thus granting summary judgment and dismissing his claims.
On appeal, Thompson challenges the trial court's conclusion that Clearview Mall demonstrated the curb was not unreasonably dangerous and was open and obvious. He cites expert evidence from Neil B. Hall, indicating the curb's height exceeded the local building code and arguing that this height contributed to his misstep. Thompson contends that Clearview Mall did not prove he was aware of the curb's condition, thereby failing to establish it as open and obvious. He claims the curb’s defect directly caused his injury. The appellate court reversed the trial court's ruling and remanded the case for further proceedings.
Clearview Mall asserts that the trial court's finding that the curb was open and obvious is supported by the evidence and should not be overturned on appeal. The Mall contends that Mr. Thompson's only evidence, an expert report from Mr. Hall, fails to establish that the curb was unreasonably dangerous or anything but open and obvious. Without sufficient evidence to demonstrate that the curb posed an unreasonable danger, Clearview Mall argues that Mr. Thompson did not successfully challenge the trial court's determination. The summary judgment process aims for a just, prompt, and economical resolution of cases, as outlined in La. C.C.P. art. 966(A)(2). Appellate courts review summary judgments de novo, applying the same standards as the trial court. Summary judgment is appropriate when there are no genuine issues of material fact, as defined under La. C.C.P. art. 966(A)(3). A "material fact" is one that could influence the outcome of the case, and an issue is considered "genuine" if reasonable people could disagree on it. If only one reasonable conclusion exists, summary judgment is warranted. The burden of proof rests with the moving party, but if they do not carry the trial burden of proof, they need only show a lack of factual support for the opposing party's claims, shifting the burden to the opponent to provide evidence. If the opposing party fails to do so, summary judgment must be granted. Regarding owner liability under La. C.C. art. 2317.1, liability for damage due to a defect requires proof that the owner knew or should have known of the defect and failed to act reasonably. The assessment of sidewalk conditions requires a case-by-case examination to determine if it was maintained safely for those exercising ordinary care. Courts utilize a risk-utility balancing test to evaluate if a condition is unreasonably dangerous, weighing the potential harm against the benefits and feasibility of repair.
The risk-utility balancing test involves four key factors: (1) the utility of the condition in question; (2) the likelihood and severity of harm, including how obvious the condition is; (3) the cost associated with preventing the harm; and (4) the nature of the plaintiff's activities regarding their social utility and potential danger. Clearview Mall argued in its motion for summary judgment that Mr. Thompson could not prove that the alleged defect of the 9-inch curb was obvious and apparent, which is necessary to establish the second prong of the test. Under Louisiana law, defendants are not liable for hazards that are obvious and apparent to all potential encounters. Clearview Mall supported its claim with an incident report, video evidence, Mr. Thompson's deposition, and photos of the curb marked in red. In contrast, Mr. Thompson presented an expert report from Neil B. Hall, who determined that the curb's riser height exceeded the maximum 7 inches allowed by building codes. He argued that Mr. Thompson would not have anticipated the additional height and categorized the fall as a misstep due to the excessive curb height. Hall concluded that the walkway's design was unreasonably unsafe and violated multiple design standards and building codes. The evidence provided by Mr. Thompson was deemed sufficient to contest the claim that the curb was open and obvious, leading to the conclusion that material factual disputes remained. Consequently, the trial court's summary judgment in favor of Clearview Mall was reversed, and the case was remanded for further proceedings, with Clearview Mall responsible for the costs of the appeal.
