Court: Louisiana Court of Appeal; February 27, 2019; Louisiana; State Appellate Court
Earl Primeaux, a hotel guest, appeals the trial court's summary judgment favoring defendants Best Western Plus Houma Inn and Cajun Lodging, LLC, following his trip and fall incident on October 19, 2014. While attempting to enter the hotel to return his room key, Mr. Primeaux tripped on the elevated curb, striking his head on the sliding glass doors and sustaining injuries. He filed a personal injury lawsuit on October 19, 2015.
The defendants argued that Mr. Primeaux could not demonstrate that an unreasonably dangerous condition existed on their premises, as required by the Merchant Liability Statute (LSA-R.S. 9:2800.6). They claimed the curb was painted bright yellow and was visible, asserting that Mr. Primeaux failed to see an obvious hazard. In opposition, Mr. Primeaux cited various code violations to argue the premises were unreasonably dangerous, submitting an affidavit from architect Mitchell Wood. However, Mr. Wood's initial affidavit lacked evidence of a premises inspection prior to its submission. Mr. Primeaux acknowledged the curb's yellow paint but presented witness Angela Petry's affidavit to support that it was dull and chipped.
The defendants challenged Mr. Wood's affidavit, arguing it lacked personal knowledge as required by LSA-C.C.P. art. 967A, and submitted a reply memorandum. The day before the hearing, Mr. Wood filed a supplemental affidavit claiming to have inspected the premises on May 3, 2017. During the May 5, 2017 hearing, the trial court granted the defendants' motion for summary judgment after reviewing photographs from both parties, concluding that the curb's yellow paint was established, despite disputes over its brightness.
The trial court determined that the curb was "clearly visible" and concluded it was an open and obvious condition, not unreasonably dangerous. The court did not formally rule on the defendants' objections to Mr. Primeaux's opposition exhibits but considered Mr. Wood's affidavit, despite Wood's lack of firsthand knowledge of the scene prior to submitting it. The court found that Wood's affidavit did not raise a genuine issue regarding the curb's danger, as it failed to address critical factors that experts typically assess.
At the motion hearing, the defendants objected to Mr. Primeaux's supplemental opposition and exhibits, arguing they were prohibited by LSA-C.C.P. art. 966 due to untimeliness. The court upheld this objection, leading to Mr. Primeaux proffering the excluded exhibits.
Mr. Primeaux filed for a devolutive appeal in July 2017, but the trial court's judgment lacked proper language for an appeal, resulting in the dismissal of the appeal on December 7, 2017. An amended judgment with the correct language was signed on April 25, 2018, from which Mr. Primeaux appealed. He contended that the trial court erred by ruling that the defendants met their burden of proof, arguing that Wood's affidavit demonstrated the curb posed an unreasonable risk and that the defendants were aware or should have been aware of its design flaws. Additionally, he claimed the court erred in granting the summary judgment motion due to incomplete discovery.
The summary judgment process is designed for efficient resolution of cases, allowing a motion to be granted if there are no genuine material facts in dispute, with the burden of proof resting on the moving party. If the moving party does not bear the ultimate burden at trial, they need only show the absence of factual support for an essential element of the opposing party's claim, shifting the burden to the opposing party to demonstrate a genuine issue of material fact. A material fact is one that could affect the outcome of the case or the success of a litigant's claim.
A "material" fact is defined as one that influences the outcome of a trial. Disputes over material facts must favor a trial rather than summary judgment. Materiality is determined by the relevant substantive law, and an issue is considered "genuine" if reasonable people could disagree on it; if not, summary judgment is appropriate. Courts are prohibited from assessing merits, credibility, or weighing evidence in this determination.
Under Louisiana's Merchant Liability Statute (LSA-R.S. 9:2800.6), "merchant" includes innkeepers for areas akin to those of a merchant, such as hotel lobbies. Mr. Primeaux's fall at the Best Western hotel falls under this statute. A plaintiff must prove three elements to establish a negligence claim against a merchant: (1) the existence of a condition posing an unreasonable risk of harm that was foreseeable, (2) the merchant's actual or constructive notice of that condition prior to the incident, and (3) the merchant's failure to exercise reasonable care.
It is insufficient to prove a lack of written or verbal safety procedures alone; a merchant must maintain reasonably safe premises, and a lack of unreasonably dangerous conditions negates liability. Plaintiffs must prove their case by a preponderance of the evidence regarding the hazardous condition. Merchants are not insurers of safety and customers must also exercise ordinary care.
A four-part risk-utility balancing test assesses whether a condition is unreasonably dangerous, considering: (1) the utility of the condition, (2) the likelihood and magnitude of harm including its obviousness, (3) the cost of preventing harm, and (4) the nature of the plaintiff's activity. Generally, merchants do not have a duty to protect against hazards that are open and obvious, which must be apparent to anyone who might encounter them.
In recent rulings, the Louisiana Supreme Court established that if there are no significant factual disputes, a court can grant summary judgment by determining that a defect is open and obvious, thus not posing an unreasonable risk of harm. Summary judgment is appropriate when there is no legal duty owed due to the obviousness of a condition. To favor the defendants in this case, the court must agree with the trial court that the condition in question did not present an unreasonable risk of harm.
The court conducted a de novo review, considering Mr. Primeaux's exhibits submitted against the defendants' motion but excluding supplemental exhibits that the trial court rejected. The defendants' motion was supported by Mr. Primeaux's deposition, where he confirmed that photographs presented accurately depicted the area of his fall. These photographs revealed a clearly painted yellow curb, with distinct surface colors indicating the location of the fall. Mr. Primeaux, who had checked into the hotel two days prior and had used the entryway without incident, stated the weather was clear and nothing obstructed his view of the curb.
During his deposition, Mr. Primeaux indicated that he tripped due to not lifting his foot high enough, suggesting the curb was open and obvious. The defendants successfully demonstrated the absence of factual support for essential elements of Mr. Primeaux's claim, shifting the burden to him to provide evidence to support his case.
In response, Mr. Primeaux submitted an affidavit from Mr. Wood, claiming the curb ramp violated safety standards set by the Americans with Disabilities Act and the Life Safety Code NFPA 101. Mr. Wood argued that the ramp's placement created a tripping hazard by intruding into the entryway space and that the ramp did not comply with gradient requirements. However, the court found Mr. Wood's affidavit insufficient to create a genuine issue of material fact. Notably, Mr. Primeaux acknowledged he fell before reaching the ramp and entryway door, making the ramp's specifications irrelevant to his case.
Mr. Wood's affidavit fails to demonstrate that the codes he cited were applicable to the Best Western, only asserting that the Life Safety Code NFPA 101 (1997 edition) requires a level landing between the ramp and entrance doors. Buildings constructed before the establishment of such codes are generally "grandfathered in," meaning they do not need to comply with new codes unless significant renovations occur. Mr. Primeaux did not provide evidence showing that the defendants were obligated to adhere to the codes mentioned by Mr. Wood. Additionally, compliance with building codes is just one element in assessing premises liability. The alleged code violations do not impact whether the defect was open and obvious.
The curb in question was painted yellow, making it visible to pedestrians exercising reasonable care. This case mirrors the situation in Williams v. Liberty Mutual, where the court affirmed summary judgment for the defendants after a plaintiff fell from a curb that was not visually distinct. In Eskine v. City of Gretna, the plaintiff argued that a narrow and deteriorated walkway was unreasonably dangerous, but the court ruled that the condition was open and obvious, leading to a similar outcome.
Mr. Primeaux references Calcagno and Sistler v. Liberty Mutual Insurance Company to argue that the elevated curb posed an unreasonable risk of harm; however, these cases are distinguishable. In Calcagno, the curb's faded paint created an optical illusion, while in Sistler, the use of identical tile colors masked the elevation change.
The Best Western's entryway curb did not create an optical illusion, as Mr. Primeaux admitted he could see it and could have used an alternative route, such as the ramp. Photographic evidence shows that the yellow paint on the curb made it clearly visible. Mr. Primeaux's claim that the trial court incorrectly granted summary judgment due to ongoing discovery is unfounded. Louisiana Code Civil Procedure art. 966A(3) allows for summary judgment if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law, even if discovery isn't complete, provided parties had a fair opportunity to discover evidence. The trial court has broad discretion in managing pre-trial discovery, which will not be overturned unless there is clear abuse. Mr. Primeaux argued that the defendants' responses indicated discovery was incomplete, yet he did not file a motion to compel or request a continuance for further discovery. Given that the case had been pending for over a year prior to the summary judgment motion, the court found that Mr. Primeaux had adequate opportunity for discovery. Consequently, the trial court's decision to grant summary judgment was upheld, affirming the April 25, 2018 judgment and assessing appeal costs to Mr. Primeaux.
The petition names ABC Insurance Company as a defendant, although no actual insurance company was substituted. Mr. Primeaux claims the premises is owned or operated by Best Western Plus Houma Inn and Cajun Lodging, LLC. The defendants objected to Mr. Primeaux’s statement of disputed material facts for not adhering to Uniform Rules of Louisiana District Courts, Rule 9.10(b), as it lacked necessary citations or exhibits. They also contested the medical records provided by Mr. Primeaux, arguing he submitted only limited pages instead of the complete records requested via subpoena duces tecum. Mr. Primeaux counters this objection with Mr. Wood's affidavit, asserting that building codes prohibit elevation changes at exterior entrances, as pedestrians focus on the entry, not the ground. Mr. Wood also opined that the hotel entryway violated safety standards due to the absence of a level landing between the doors and ramp; however, the court noted that this absence does not impact whether the curb's elevation was unreasonably dangerous. The trial court excluded supplemental medical records attached to Mr. Primeaux’s opposition. The Merchant Liability Statute applies to similar trip-and-fall cases, and while expert opinions are considered by the court, they must create a genuine issue of material fact to counter summary judgment. In prior cases, expert opinions deemed conclusory were insufficient to oppose summary judgment, while others successfully established genuine issues of material fact. Mr. Wood's affidavit does not address the curb's color.
