author: CHARLES R. JONES, Judge.

text:
    Gayle DELLINGER v. Patrick VAN HOOREBEEK.
    No. 2010-CA-1759.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 2011.

      Fred E. Salley, Salley & Associates, Covington, LA, for Plaintiff/Appellant.
    W. Paul Andersson, Leake & Andersson, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge MICHAEL E. KIRBY).
   CHARLES R. JONES, Judge.

hThe appellant, Gayle Dellinger, seeks review of a district court judgment dismissing her claim as the mandatary of the defendant. We affirm.

On November 9, 2007, Ms. Dellinger attended the Opera Charity Ball in New Orleans where she alleged that she was sought out by the Appellee, Mr. Patrick Van Hoorebeek, who requested that she bid, as his mandatary, on a Public Belt sponsored railcar party package for him, since he was an auctioneer and could not bid. She claims that following the request, she bid on the auction lot allegedly under the authorized expenditure of Mr. Van Hoorebeek and paid with her own funds, specifically with her American Express card. Thereafter, she arranged for the delivery of the merchandise and all indicia of ownership to Mr. Van Hoorebeek.

Upon completion of her mandate, Ms. Dellinger made an accounting to Mr. Van Hoorebeek and requested payment of her expenditures and expenses; made numerous subsequent written demands for payment; and .placed Mr. Van Hoorebeek in default. Eventually, Ms. Dellinger filed suit on August 6, 2009, |2seeking her expenses, interest, as well as attorney fees and costs. She maintained that Mr. Van Hoorebeek intended to permanently convert her funds and other property.

After discovery, a bench trial commenced in the district court on July 28, 2010, after which, the district court dismissed the claim of Ms. Dellinger with oral reasons. The instant appeal followed, and Ms. Dellinger raises the following assignments of error on appeal:

1. The district court erred in refusing to permit the record of Request for Admissions served on Mr. Hoore-beek, and did the district court commit reversible error in failing to give conclusive evidentiary effect to the admission as mandated by La. C.C.P. art. 1466-1468.
2. The district court clearly erred and committed reversible error in ruling that the facts did not demonstrate the formation of an enforceable request for and acceptance of a mandate under Louisiana law.
3. The district court legally erred and was manifestly erroneous in refusing to grant a directed verdict on Ms. Dellinger’s motion made at the conclusion of her case, and renewed at the conclusion of the trial.
4. The district court commit legal error and was clearly wrong in failing to award Dellinger her legal fees made necessary by the actions of Mr. Van Hoorebeeke in refusing to permit her to complete the accounting for the mandate.

DISCUSSION

A reviewing court may not disturb findings of fact absent manifest error or unless they are clearly wrong, and where there is conflicting testimony, reasonable inferences of fact should not be disturbed upon appellate review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Likewise, where there are two permissible views of | ¡¡evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.; Neal Auction Co., Inc. v. Lafayette Ins. Co., 2008-0574, p. 4 (La.App. 4 Cir. 4/29/09), 13 So.3d 1135, 1138, reh’g denied, (La.6/5/09), writ denied, 2009-1499 (La.11/6/09), 21 So.3d 313 and unit denied, 2009-1608 La. 11/6/09, 21 So.3d 313.

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. La.Civ.Code Ann. art. 2989. The contract of mandate may serve the exclusive or the common interest of the principal, the man-datary, or a third person. La. Civ.Code Ann. art. 2991. The contract of mandate is not required to be in any particular form. La. Civ.Code Ann. art. 2993. The principal may confer on the mandatary general authority to do whatever is appropriate under the circumstances. La. Civ.Code Ann. art. 2994. The principal is bound to reimburse the mandatary for the expenses and charges he has incurred and to pay him the remuneration to which he is entitled. La. Civ.Code Ann. art. 3012. The principal is bound to compensate the mandatary for loss the mandatary sustains as a result of the mandate, but not for loss caused by the fault of the mandatary. La. Civ.Code Ann. art. 3013. The principal owes interest from the date of the expenditure on sums expended by the mandatary in performance of the mandate. La. Civ.Code Ann. art. 3014. A mandatary who contracts in his own name without disclosing his status as a mandatary binds himself personally for the performance of the contract. La. Civ.Code Ann. art. 3017.

^Furthermore, “it is not necessary for an agent to establish an express agreement that he should have a pecuniary remuneration for his services. Courts may infer such an agreement from the nature of the employment and the relations of the parties.” Waterman v. Gibson, 5 La. Ann. 672, 673 (1850).

In the instant matter, it appears that the arguments of Ms. Dellinger concern nineteen (19) Requests for Admissions that Mr. Van Hoorebeek failed to answer during discovery. “A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Articles 1422 through 1425 set forth in the request or of the truth of any relevant matters of fact, including the genuineness of any documents described in the request....” La.Code Civ. Proc. Ann. art. 1466. La.Code Civ. Proc. Ann. art. 1467, paragraph “A” provides:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within fifteen days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of thirty days after service of the petition upon him. The written answer or reasons for objection to each request for admission shall immediately follow a restatement of the request for admission to which the answer or objection is responding. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, |she shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Article 1472, deny the matter or set forth reasons why he cannot admit or deny it. (Emphasis added)

After presenting the testimony of Paul Nelson and Ms. Dellinger, and just before resting, counsel for Ms. Dellinger sought to introduce Requests for Admissions— which the district court denied on the grounds that all of the facts sought to be determined by the requests for admissions had already been presented through live testimony. The district court observed:

Hold on, Mr. Salley. The purposes of the Request for Admission are to avoid if necessary trial on the merits on any matter admitted. We have already had trial on the merits on each of these issues. I will allow you to proffer that exhibit but I’m not allowing you to try your case by a failed Request for Admissions when the same is not brought up to the court in advance. We’ve already had a trial on the merits. The interest of justice is served by presentation of the witnesses before the Court in then-testimony and answer to the very questions that were asked in the Request for Admissions ...
[plaintiff reserves her rights]
... Absolutely. And that they are admitted, they are actually the same exact answers that this witness has given, or this witness hasn’t yet answered those questions but we’ll consider those at the end of the trial, but a request for admission does not — Article 1468 further says: The court may permit withdrawal or amendment when the presentation of the merits of the action will be sub-served thereby and the party who obtained the admission fails to satisfy the court that withdrawal or |fiamendment will prejudice him in maintaining his action or defense on the merits.

Counsel for Ms. Dellinger then rested. The district court determined that eighteen of the Requests for admissions were established by the trial testimony; the nineteenth (as argued by Mr. Van Hoore-beek) was an attempt to have the ultimate trial issue decided — and the district court declined to rule thereon.

In the district court’s oral reasons for judgment, the court concluded:

In this case it appears that there can be an oral contract of mandate and the question is whether or not there’s an offer and acceptance and the meeting of the minds on the night of November 7th, 2008. The Court finds that there was not; that Mr. Van Hoorebeek did indeed approach Ms. Dellinger about the opportunity to purchase this train ride. Mr. Van Hoorebeek intended it to be a suggestion to be made on behalf of the Krewe of Cork. Ms. Dellinger either misunderstood him or understood something differently than what he intended.
I reach that conclusion by the facts that follow. If Ms. Dellinger had in fact agreed on that evening to commit herself to a $4,000 debt to Mr. Van Hoore-beek, that’s a fairly unreasonable thing for her to do given that he already owed her $6300 if she was committing to him personally to incur another $4,000 debt. That doesn’t make a lot of sense to me just from a common sense standpoint. It does make sense that she thought they could appropriately sell it to the Krewe of Cork and the Krewe of Cork would allow this and get members to do it. That makes much more sense than to incur an additional $4,000 debt on behalf of a man with whom she no longer had a personal relationship who already owed you $6300 and wasn’t paying.
Secondly, on the Monday morning after the event or when the American Express came due in 30 days, there was no demand by Ms. Dellinger to Mr. Van Hoorebeek for payment, which you would think would be reasonable if I ask you to incur $4,000 on a Saturday night to put it on my credit card, that the next day or two days later or at least at the cycle for the credit card you would say “by the way, this is what I paid for you. Could you send me a check.” The emails that were 17submitted by Ms Del-linger do not begin any correspondence until April 28th, 2008 which is six months after the incurring of the debt is the first instance. There can be multiple interpretations of these e-mails. It’s clear to me that Mr. Van Hoorebeek did not intend it for him personally. He intended it for the Krewe of Cork. It was an unfortunate misunderstanding between friends. Unfortunately the Court cannot find it to be an expressed obligation of offer and acceptance between these parties. The plaintiff bears the burden of proof and has failed to meet it in this instance.’

At trial, it was uncontroverted that Ms. Dellinger and Mr. Van Hoorebeek both attended a charity auction (although the circumstances of their meeting at the auction are at issue), where Ms. Dellinger successfully bid $4,000 for the one-time use of restored railroad cars owned by The New Orleans Public Belt Railroad. Ms. Dellinger charged the auction bid to her personal American Express card, which she later paid with personal funds. However, while, Ms. Dellinger claims that she acted exclusively at the direction and instruction of Mr. Van Hoorebeek in making her bid, and that the debt was therefore exclusively his to repay, Mr. Van Hoore-beek described the events differently, noting that they were both active in a Mardi Gras club, and that the idea was to purchase the rail car lot as a fund-raising opportunity for the club. The record reflects, and it was uncontested at trial, that Ms. Dellinger was: (1) an officer with check-signing authority for the Mardi Gras club; (2) she was familiar with the personal financial circumstances of Mr. Van Hoo-rebeek, both before and after the auction; and (3) that she was aware that Mr. Van Hoorebeek already owed her $6,300, on which debt he was paying a small monthly sum intermittently.

|rMs. Dellinger also testified at trial that she administered the retirement account of Mr. Van Hoorebeek, and that she was aware that he had had to withdraw funds previously from that account in order to repay loans to her. And, the testimony of Mr. Van Hoorebeek corroborated the extent to which Ms. Dellinger was familiar both with his personal financial status and that of the Mardi Gras club. Ms. Dellinger knew that neither entity had the money to pay for the bid that she made — and that repayment could only come as a result of a “Krewe of Cork” event sold to the membership. Mr. Van Hoorebeek has never been an officer of the club, and had no access to the Krewe of Cork’s funds.

The record indicates that there was a failure between the parties to agree on what was confected between them, and that it cannot be said that Ms. Dellinger completely understood what was asked of her. However, while Ms. Dellinger argues that Mr. Van Hoorebeek wanted the subject railcar lot for himself, he argues that he suggested that it be purchased to benefit Krewe of Cork. Considering these two points of view, the choice of the district court was not manifestly erroneous nor clearly wrong in its judgment.

DECREE

The judgment of the district court is affirmed.

AFFIRMED

      . Judgment was signed August 10, 2010.

      . Trial counsel for Ms. Dellinger.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge. ARMSTRONG, C.J., McKAY, J., TOBIAS, J.,

license: Public Domain

text:
    Billie WARREN v. Robert KENNY and ABC Insurance Company.
    No. 2010-CA-1580.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 2011.

      Salvador M. Brocato III, Law Office of Salvador M. Brocato, III, APLC, Metairie, LA, for Plaintiff/Appellant.
    Paula M. Wellons, Vicki A. Elmer, Taylor Wellons Politz & Duhe, APLC, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS).
   PATRICIA RIVET MURRAY, Judge.

|! This is a personal injury suit by a tenant, Billie Warren, against her landlord, Dr. Robert Kenny, and his insurer. From the trial court’s decision granting Dr. Kenny’s motion for summary judgment, Ms. Warren appeals. Finding a genuine issue of material fact exists, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the accident in question, Ms. Warren was employed by Dr. Kenny as a medical assistant and living in an apartment owned and operated by him. Her apartment was located in the same two-story building as Dr. Kenny’s medical office. His office was located on the first floor, and her apartment was located on the second floor. Another apartment that Dr. Kenny leased to Mark Shanks also was located on the second floor. Ms. Warren had no lease. She was allowed to live in the apartment as an employment incentive without paying rent or utilities.

According to Ms. Warren, Dr. Kenny provided his tenants with access to a community laundry facility — a washer and dryer that he owned and that were | ^Located on Mr. Shanks’ open second floor balcony. She claimed that Dr. Kenny provided his tenants with access to the laundry facility not by stairs, but rather by a ladder. She explained that Dr. Kenny had his maintenance man, Keith Sparrow, attach an A-frame (carpenter) ladder with a cable lock to the iron work on the exterior wall under the balcony. She further claimed that Dr. Kenny instructed the tenants, including her, to use the attached, unopened, A-frame ladder to access to the community laundry facility.

On the day of the accident, Ms. Warren woke up early to do her laundry. According to Ms. Warren, she successfully ascended the ladder and placed her laundry in the washer; as she was attempting to descend the ladder she fell. In her deposition, Ms. Warren testified as follows regarding how the accident occurred:

Q: Tell me about the incident in the sense that your petition alleges that you were descending some stairs coming from a laundry room when the railing gave way and caused you to fall to the ground resulting in injury, Describe for me where the stairs were.
A. Okay.... As you get to the back of the building, the apartment on that side [Mr. Shanks’ apartment] has a balcony that is outside of the apartment. The stairs were — the ladder was connected to a[n] iron | owork that you would put on a window or a door, and I had already safely made it up the steps to— up the ladder to put my clothes in a washing machine and was descending the ladder.
There were — there are railings up at the top. My hand was on top of the railing, and my feet was [ (sic) ] on the ladder. The railing gave loose, and in the process of the railing gave loose there was nothing for me to physically hold on to. As a result of that, I went tumbling down.

The photographs taken the date of the accident reflect that both Ms. Warren and the railing fell to the ground. As a result of the accident, Ms. Warren broke her femur. This suit followed.

After answering the suit and denying liability, Dr. Kenny filed a motion for summary judgment asserting that he owed no duty to warn Ms. Warren of the open and obvious danger of ascending and descending an A-frame tethered and locked ladder to access a neighboring tenant’s second floor balcony to do her laundry. In connection with the motion, Dr. Kenny introduced the four depositions that were taken in this case — the depositions of the parties (Ms. Warren and Dr. Kenny), the other tenant (Mr. Shanks), and Dr. Kenny’s maintenance man (Mr. Sparrow). He also introduced copies of photographs of the ladder taken by Ms. Warren’s friend on the date of the accident.

Although Dr. Kenny acknowledged the existence of a factual dispute between the parties regarding the purpose for the placement of the ladder, he | contended that the factual dispute was not material. Rather, citing Ms. Warren’s deposition testimony that she “didn’t think the whole [ladder] setup was safe,” he contended that she was aware before her fall that utilizing the ladder to enter her neighbor’s porch was an unsafe activity. He further- contended that despite her awareness of the inherent risks, Ms. Warren had made a conscious decision to climb the ladder. He thus argued that he owed no duty to warn her of such an open and obvious condition.

Opposing the motion, Ms. Warren alleged that there were genuine issues of material fact regarding what actually had led to the placement of the ladder, what the intended use of the ladder was, and whether Dr. Kenny owed a duty to her as a result of the conversations between them regarding the washer-dryer situation. She further alleged that the conditions in question were not so open and obvious as to preclude a finding of negligence on Dr. Kenny’s part. Finally, she alleged that summary judgment was premature because discovery was ongoing and because she was in the process of retaining an expert.

Following the hearing on the motion, the trial court ruled from the bench in Dr. Kenny’s favor. The trial court rejected the argument that the factual dispute regarding the purpose for the placement of the ladder created a genuine issue of material fact. Rather, the trial court determined that it was “an open and obvious danger to climb a ladder to the second floor to climb over three railings to go into a |5porch to wash clothes,” and thus concluded that Dr. Kenny had no duty to Ms. Warren. This appeal followed.

DISCUSSION

The issue presented is whether the trial court correctly granted summary judgment dismissing this suit. The motion for summary judgment is a procedural device designed to avoid a full-scale trial when there is no genuine issue of material fact. Duncan v. U.S.A.A. Ins. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 546-47. “When sufficient time has been allowed for discovery, the courts will assess the proof submitted by the parties, equally without the former presumption in favor of trial on the merits, in order to dismiss meritless litigation.” Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 5 (La.2/20/04), 866 So.2d 228, 232, n. 2. “Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish National Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)).

Appellate courts review summary judgment de novo, using identical criteria to that used by the trial court in considering whether summary judgment is appropriate. Id. The rules governing summary judgments are found in La. C.C.P. arts. 966 and 967. In determining whether summary judgment is appropriate the | fitwo issues a court must resolve are whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066, p. 5 (La.7/6/04), 880 So.2d 1, 5. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A “material” fact is “one that would matter on the trial on the merits.” Id. The applicable substantive law determines materiality. Id.

Summarizing the applicable substantive law regarding the duty of a landowner, the Louisiana Supreme Court in Eisenhardt v. Snook, 08-1287, pp. 5-6 (La.3/17/09), 8 So.3d 541, 544-45, stated:

It is well-settled that a landowner owes a duty to a plaintiff to discover any unreasonably dangerous conditions, and to either correct the condition or warn of its existence. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991); Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406, 410 (La.1976)
Nonetheless, we have recognized that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner. Dauzat v. Cumest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184; Hutchinson v. Knights of Columbus, 1703 — 1533 at p. 9 (La.2/20/04), 866 So.2d 228, 234; Pitre v. Louisiana Tech University, 95-1466, 95-1487 at p. 11 (La.5/10/96), 673 So.2d 585, 591.

Simply stated, the duty a landowner owes to a person injured by a defect on his property hinges on how obvious the defect is to all comers. Pitre, supra.

In this case, the trial court granted summary judgment in Dr. Kenny’s favor based on its conclusion that “there’s no basis in law for finding him liable because it was an open and obvious dangerous situation.” On appeal, Ms. Warren contends that there are genuine issues of material fact, including the purpose for placement of the ladder and the integrity of the railing. She further contends that Dr. Kenny’s actions — ordering the ladder be placed on the wall for the purpose of allowing tenants to access the community laundry facility and instructing tenants, including her, to use the ladder for that purpose — were sufficient to create a duty. See Posecai v. Wal-Mart Stores, 99-1222 (La.11/30/99), 752 So.2d 762. She further contends that the trial court erred in finding that the existence of an open and obvious dangerous condition precludes her recovery. In support, she cites DeStevens v. Harsco Corp., 94-1183 (La.App. 4 Cir. 3/16/95), 652 So.2d 1054, for the proposition that the open and obvious nature of the dangerous condition generally only determines the issue of the plaintiffs comparative fault, not the defendant’s duty.

In granting the motion for summary judgment, the trial court’s finding that no duty existed was based on the jurisprudence holding that “the duty which a landowner owes to persons entering his property is governed by a standard of | ^reasonableness, and that a potentially dangerous condition that should be obvious to all comers is not, in all instances, unreasonably dangerous.” Socorro v. City of New Orleans, 579 So.2d 931, 941 (La.1991). This is referred to as the “open and obvious” defense. As this court has recently noted, “the factfinder may conclude that an open and obvious defect does not present an unreasonable risk of harm.” Burns v. CLK Investments V, L.L.C., 10-0277, p. 19 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, 1163-64 (emphasis in original).

We note that in the instant case, the alleged dangerous condition consisted of not only the attached ladder, but also the removable railing on Mr. Shanks’ balcony. The photographs taken on the day of the accident reflect that both Ms. Warren and the railing fell to the ground. The railing was affixed only by “screen door” hooks so that it could be removed when necessary to allow large items (like furniture) to be moved in and out of the apartment, which had very narrow hallways. Ms. Warren argued that “[a]ny reasonable lay person could opine that a three foot piece of railing should not be secured, with any expectation of holding, with only a screen door hook on one side and eyelet on the other.”

In her deposition, Ms. Warren testified that, before her accident, she was not aware of any problem with the railing:

Q. Now, the railing that we said was loose and that gave way, had you ever had any problems with that before?
A. Never.
|9Q. So you had no idea that the railing was loose?
A. No, sir.
Q. So I guess it’s safe to say you didn’t report to Kevin [Sparrow] or Dr. Kenny that the railing was loose?
A. If I had known that railing was loose, I would have never did it.
Q. You wouldn’t have gone up there?
A. Never.

In deciding the motion for summary judgment, the trial court reasoned as follows:

[T]he railing issue it gives me a little bit of pause. The fact of the matter is the very act of climbing this ladder and climbing over railings to wash clothes is a dangerous activity that she undertook herself, so even' accepting everything that she [Ms. Warren] says is true, I find that there’s no basis in law for finding him [Dr. Kenny] liable because it was an open and obvious dangerous situation.

The trial court specifically rejected Ms. Warren’s contention that the parties’ dispute regarding the purpose for the placement of the ladder created a genuine issue of material fact. Instead, the court found that the photographs of the ladder setup taken the day of the accident reflect that climbing up and down this ladder was “a dangerous and difficult thing to do” and that it was “unreasonable to think that one would not get hurt climbing up that ladder and stepping on to that porch, especially as you’re going up and down with a basket of clean or dirty clothes. The risk that comes with that is that you’re going to fall.”

|inWe agree with the trial court that the risk of climbing a ladder up the side of a building to a second floor balcony while carrying a basket of laundry might reasonably be deemed an open and obvious danger. Nevertheless, we find that the impermanent manner in which the balcony railing was secured in this case was not an open and obvious danger. Moreover, the fact that the ladder was attached to the side of the building did not put Ms. Warren on notice that the balcony railing, which was secured only by “screen door” hooks, would likely come loose if she attempted to climb over or under it.

Although good judgment may have dictated, as the trial court reasoned, that Ms. Warren do her laundry someplace else, that fact does not absolve Dr. Kenny from potential liability as a matter of law. Under these circumstances, a fact finder reasonably could determine that Dr. Kenny, assuming he told Ms. Warren she could use the washer and dryer on Mr. Shanks’ balcony, also should have warned her that the railing was secured only by “screen door” hooks so that it could easily be removed. Whether or not he had a duty to do so under the particular circumstances presents a genuine issue of material fact that precludes summary judgment. Stated otherwise, even though Ms. Warren’s decision to use the ladder and climb over (or under) the railing may have been unreasonable — as the trial court found— and may ultimately result in the fact finder allocating a substantial percentage of the fault to her, we cannot conclude on the basis of this record that it precludes her recovery as a matter of law. We therefore find the summary judgment was improperly granted.

In DECREE

For the foregoing reasons, the judgment of the trial court is reversed; and this matter is remanded for further proceedings.

REVERSED AND REMANDED

ARMSTRONG, C.J., dissents.

McKAY, J., dissents.

TOBIAS, J., concurs in the result.

ARMSTRONG, C.J.,

dissents.

hi respectfully dissent for the reasons assigned by Judge McKay.

McKAY, J.,

dissents.

hi respectfully dissent and would affirm the trial court’s granting of summary judgment.

The Louisiana Supreme Court has specifically held that, if the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous, and the landowner may owe no duty to the plaintiff. Dauzat v. Curnest Guillot Logging, Inc., 2008-0528 (La.12/2/08), 995 So.2d 1184; Hutchinson v. Knights of Columbus, 2003-1533 (La.2/20/04), 866 So.2d 228. Furthermore, a landowner is not liable for any injury which results from a condition which should have been observed by the plaintiff in the exercise of reasonable care or which was obvious to the visitor as it was to the landowner. Hutchinson at 235.

In the instant case, the risk was obvious, yet the plaintiff decided to use the ladder to access the balcony anyway. Both the land owner and the tenant of the other apartment testified that they did not give the plaintiff permission to access balcony via the ladder. There is no dispute as to the facts of this case. The plaintiff clearly took it upon herself to act in an unreasonable manner and she suffered the consequences.

TOBIAS, J.,

concurs in the result.

11 Like the trial court, I focus on whether the ladder rather than the railings created an unreasonable risk of harm to Ms. Warren. I find the issue is one of comparative fault that cannot be resolved at the hearing of a motion for summary judgment, i.e., genuine issues of material fact exist in this case. Accordingly, I respectfully concur in the result reached by the majority that reverses the granting of the motion and remands this matter for further proceedings.

      . For ease of discussion, the two defendants. Dr. Kenny and his insurer, Atlantic Casually Insurance Company, are collectively referred to in this opinion as "Dr. Kenny.”

      . Dr. Kenny also owned two adjacent buildings and leased apartments in those buildings. He, therefore, had multiple tenants residing in the area.

      . In her deposition, Ms. Warren testified regarding the following time line that resulted in the placement of the ladder on the exterior wall. She stated that Dr. Kenny orally informed her that she could use the community washer and dryer that he owned. When she first moved into her apartment, the community washer and dryer were located in separate places. The dryer was in her apartment; the washer was on the open balcony of the adjacent (Mr. Shanks’) apartment. On several occasions, Ms. Warren found Will, another of Dr. Kenny's employees who was also a tenant, inside her apartment using the community dryer. On one of the occasions, she and her former boyfriend (who was a police officer) walked into the apartment and found Will using the dryer. Believing Will to be a burglar, Ms. Warren’s boyfriend almost shot him. Ms. Warren and her boyfriend complained to Dr. Kenny regarding this dangerous situation. In response, Dr. Kenny had his maintenance man, Mr. Sparrow, move the dryer out of her apartment and put it on the open balcony of the next door apartment. As a result, both the washer and dryer were outside on the neighbor’s balcony. Since the laundry facility was located on another tenant's (Mr. Shanks’) open balcony, the only way to access it was by passing through the other tenant’s apartment. To provide access to the laundry facility without having to bother the other tenant, Dr. Kenny instructed his maintenance man, Mr. Sparrow, to place a ladder on the wall under the balcony. According to Ms. Warren, the placement of the ladder on the wall coincided with the movement of the dryer from her apartment. She estimated that it occurred about a month and a half before the accident. Ms. Warren stated that she (as well as other tenants)was instructed to use the ladder to access the community laundry facility and that Dr. Kenny was aware that she was using the ladder. Dr. Kenny had Mr. Sparrow move the ladder immediately after the accident.

      . In her petition, Ms. Warren alleged that the accident occurred when she was "descending a set of stairs and coming from the laundry room” and "the railing gave way and caused her to fall to the ground.” She further alleged, inter alia, that Dr. Kenny was liable in setting up the laundry room in a place where the sole way to access it was through the dangerous set of stairs. Contrary to the allegations in the petition, it is undisputed that the accident in question did not involve stairs; rather, it involved an attached, A-frame ladder and a balcony railing.

      . Although reference is made by the parties and the deponents to a surveillance video, a copy of the video was not introduced. Apparently the video shows a portion of Ms. Warren’s accident.

      . According to Dr. Kenny, the ladder tethered to the building was placed there so that one of the workers performing repairs to the building could use it since they were working in the area. The ladder was secured to the building so that no one would steal it and so that the workers would have access to it without needing the key to the adjacent shed, which was kept locked. Dr. Kenny denied authorizing Ms. Warren to use the ladder to access the laundry facility on the neighbor’s balcony. Dr. Kenny testified that there was no community washer and dryer for the tenants; rather, each apartment had its own washer and dryer connections. Dr. Kenny did not supply any tenants with washers and dryers. The dryer that was originally in Ms. Warren’s apartment did not belong to her; it was left by the previous tenant, who gave the dryer to Mr. Sparrow, who was Dr. Kenny’s maintenance man and also a tenant. Mr. Sparrow allowed his dryer located in Ms. Warren's apartment to be moved to the second floor porch of another tenant, Mr. Shanks, where it was located at the time of Ms. Warren’s accident. Until Ms. Warren fell, Mr. Shanks was unaware that she had been using the washer and dryer on his porch.

      . Dr. Kenny also pointed out that Ms. Warren had numerous safer alternative options to laundry her clothes. First, assuming (as she testified to) that she had permission to use the laundry facilities on her neighbor’s balcony, she could have waited until later that morning when her neighbor was awake, knocked on the door, and passed through her neighbor’s apartment to get to the porch. Second, she could have gone to the laundromat. Third, she could have purchased her own washer and dryer and had them installed in the apartment, which had washer and dryer connections. He also pointed out Ms. Warren acknowledged in her deposition that the reason she decided to climb the ladder to do her laundry was because it was inconvenient to do her laundry at another time (later when her neighbor was awake) or elsewhere (at a nearby laundry mat) and because she could not afford to buy her own washer and dryer.

      . Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The burden of proof remains with the mover. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party's claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La.C.C.P. art. 966(C)(2). Article 967 provides that an adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.CodeCiv. Proc. art. 967(B).

      . As the Supreme Court further stated, the determination of whether a condition is unreasonably dangerous requires consideration of the following factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff’s activities in terms of its social utility or whether it is dangerous by nature. Hutchinson, 03-1533 at pp. 9-10, 866 So.2d at 234-35.

      . In DeStevens, this court found a material factual issue as to just how obvious the danger presented by the defective condition — a power line — was, and thus concluded that "there is an issue for the jury as to whether the condition on [the landowners’] ... property was 'unreasonably' dangerous.” DeStevens, 94-1183 at p. 5, 652 So.2d at 1058. Continuing, this court found that the landowner had not “established beyond the point of a 'genuine issue of material fact,’ La.Code Civ. Pro. art. 966(B), that an extreme situation of totally one-sided fault on the plaintiff exists.” Id.

      . In Socorro, the Louisiana Supreme Court "acknowledge[d] the possibility of a danger being so obvious that it did not constitute an unreasonable danger” and acknowledged "[i]n that situation, the landowner would owe no duty or the plaintiff would be 100% at fault.” DeStevens, 94-1183 at p. 5, 652 So.2d at 1058 (emphasis in original).As this court has observed, "the main thrust of the Socorro decision, as to the issue of obvious danger, is that, in the usual case, any obvious nature of the danger will determine only the issue of whether the plaintiff was comparatively negligent and not the issue of whether the defendant had a duly. Only in the exceptional case of extremely obvious danger will the defendant be found to have no duty at all to warn of or remedy the danger.” DeStevens, 94-1183 at p. 6, 652 So.2d at 1058. See also Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law § 9.12[3](2nd ed.2010)(noting that "in the vast majority of cases in which the plaintiff would have been barred from recovery under assumption of the risk, his or her recovery is substantially reduced under comparative fault.”)

      . Addressing the railing issue, the trial court distinguished the situation presented in this case from one in which a guest on the balcony sits on the railing, leans on the railing, or puts his or her drink on the railing and the railing falls off. Under those scenarios, the trial court acknowledged that the guest would have a claim. The trial court, however, rejected the suggestion that Ms. Warren’s actions were similar to those of the guest because she was "climbing over the railing to gain access to a ladder [that was attached to the wall] to go down.”

      . In her deposition, Ms. Warren testified that she would not go over, but rather would "go under it [the railing]” and put her feet down and hold on and come down the ladder.

      . Given our finding that the granting of summary judgment was improper because there is a genuine issue of material fact with regard to whether Dr. Kenny had a duty to warn Ms. Warren about the railing, we do not address Ms. Warren’s alternate contention that the trial court’s grant of summary judgment was premature. We note, however, that Ms. Warren contends she was in the process of retaining an expert, apparently to inspect the railing.


author: MARION F. EDWARDS, Chief Judge.

text:
    In re the Application of L.P., a Minor, Applying for an Order Authorizing an Abortion Pursuant to R.S. 40:1299 35.5B.
    No. 11-CA-429.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2011.
    Michael A. Idoyaga, Attorney at Law, New Orleans, LA, for Minor/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

[2The present matter came before us on a trial de novo, following the denial in the Juvenile Court of the petitioner’s application for an order authorizing an abortion. In accordance with La. R.S. 40:1299.35.5, the minor petitioner, L.P., filed her application in the Juvenile Court on April 7, 2011. Pursuant to the Code of Juvenile Procedure, counsel was appointed to represent her in the hearing, which was heard on that same day, April 7. Following a hearing, the Juvenile Court denied L.P.’s petition. L.P. was granted an order of appeal on April 25, 2011, and trial de novo in this court was held on April 26, 2011. The trial was held in chambers with L.P., her appointed attorney, and a court reporter.

At the trial, L.P. testified that she is sixteen years old and a high school student. The father of her child is also a student and has not pressured her to get an abortion. L.P. stated that she is involved in several school activities, has a job after school, and plans to go to college and on to medical school. She hopes that her school activities will help her obtain a college scholarship. L.P. testified that she went to a medical clinic that performs abortions, where she spoke with a counsel- or in a group with some other girls. At that time, she was told there could be some type of emotional attachment or trauma associated with having an abortion. She |salso spoke with an older girlfriend. She has considered alternatives to abortion, but she does not want to place a baby for adoption “out there without knowing who their parents were.” She does not want to tell her mother, with whom she lives, about her pregnancy because her mother has a lot of problems, has been diagnosed with “anxiety,” and it would be best for her not to know because it would upset her. L.P.’s mother gave birth to her when she was sixteen years old. L.P. does not want her mother to make her decision for her. According to L.P., she and her mother do not really have a good relationship. Whether she had the baby or the abortion, her relationship with her mother would worsen. She could confide in her stepfather, but he would tell her mother.

Throughout the hearing, L.P. made it clear that she does not want to go through the emotional and physical trauma of having a baby at this time, and she does not want to place her baby for adoption. She is determined to go to college and feels that it would be harder to do so with a baby. L.P. knows girls who had babies and subsequently quit school. She felt that she is mature enough to make her own decisions and could live with her choice to have an abortion. She repeated that she does not want anyone making decisions for her.

La. R.S. 40:1299.35.5 requires the Court of Appeal, in this trial de novo, to base its decision on the criteria provided in paragraphs (4), (5), and (6) of subsection (B) and issue its final judgment and order within forty-eight hours of its hearing. According to paragraph (4), the court shall issue an order authorizing the minor to act on the matter without parental consultation or consent if it finds, by clear and convincing evidence and using “reasoned judgment and evidentiary evaluation,” that the minor is sufficiently mature and well enough informed to make the decision concerning the abortion on her own.

|4Clear and convincing evidence is an intermediate standard of persuasion, which requires more than a preponderance of the evidence, but less than proof beyond a reasonable doubt; the existence of the disputed fact must be much more probable than its nonexistence. In wording the statute, the legislature has assumed that a minor is not presumed to have the necessary maturity and information to make such a major decision on her own without consulting her parents or guardian. Thus, we are instructed to use our reasoned judgment and evaluate the evidence presented.

In this matter, the only evidence was the testimony of L.P. herself. After considering this testimony, we find that L.P. did not carry the heavy burden of proof imposed by the statute. There was no supporting evidence presented to show that L.P. has received adequate counseling and information on the effects and consequences of any decision she might make with regard to her pregnancy. Although L.P. appears to be a responsible person in several ways, we are not firmly convinced that she is sufficiently mature and well-informed enough to make such a major decision in the absence of parental consultation. L.P.’s determination not to have anyone make her decisions for her is characteristic of a person of her age. L.P. stated that her mother would be worried, which is a natural reaction, but did not indicate that any serious harm would be caused either to herself or to her mother by discussing the matter with her. From her testimony, we find that L.P. would benefit from having her mother, who is surely aware of her plans for the future and is'doubtlessly concerned with her well-being, participate in her decision regarding her pregnancy.

However, we hold that, at this time, it would not be in the best interest of L.P. for this court to formally notify her mother of the proceedings. Rather, we |sconclude that L.P. has ample opportunity as well as sufficient motive to reconsider her own decision to involve her mother. Further, for the reasons stated above, we find that L.P. has failed to show by clear and convincing evidence that an order of this court authorizing an abortion is in her best interest.

For these reasons, we deny L.P.’s petition for an abortion under La. R.S. 40:1299.35.5.

PETITION DENIED

      . Hanks v. Entergy Corp., 06-477 (La. 12/18/06), 944 So.2d 564 (citing Louisiana State Bar Assoc. v. Edwins, 329 So.2d 437 (La.1976)).


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Larry DIXON.
    No. 2010-KA-1279.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 2, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellant.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee, Larry Dixon.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe appellant, the State of Louisiana appeals a judgment of the trial court quashing the indictment of the defendant-appellee, Larry Dixon, and dismissing its prosecution of Dixon.

At the outset we must first note that the defendant in his brief on appeal concedes that, “The State’s arguments on appeal are technically correct,” and that, “For the reasons given by the State in its opening brief, it appears that the district court erred in dismissing the prosecution by way of a motion to quash.... ”

STATEMENT OF CASE

The State charged the defendant by bill of information with one count of unauthorized use of a motor vehicle, in violation of La. R.S. 14:68.4.

When the defendant failed to appear for his arraignment on August 19, 2009, the court issued a warrant for his arrest. He was arrested on June 22, 2010, and arraigned on June 29, 2010, entering a plea of not guilty.

On August 4, 2010, the court quashed the bill of information. The State entered an oral motion for appeal, which was granted.

| .STATEMENT OF FACTS

On March 11, 2009, the trial court issued an arrest warrant for the defendant. The supporting affidavit given by the victim, lists her name as “Ms. Latonya Gray” and states that the defendant, her ex-husband, failed to return her car to her, as they had agreed he would when he took the vehicle.

The defendant was arrested on April 24, 2009.

On August 4, 2010, the State amended the bill of information to the lesser offense of unauthorized use of a movable, in violation of La. R.S. 14:68. At that time, the defendant was prepared to plead guilty; however, after the Boykin waiver-of-rights colloquy, it appeared that the victim was the defendant’s wife. The judge called a bench conference, after which he questioned the defendant as to his marital status and learned that the defendant was “in the process of getting a divorce” from the victim.

Following another bench conference, the judge called the victim as a witness. The victim identified herself by her married name, Latonya Dixon, and testified that she and the defendant were married on June 22, 2007. When questioned about why she told the police officer at the time she made a complaint that the defendant was her ex-husband, she replied:

I didn’t tell them he was my ex-husband. On my [vehicle] registration papers and everything, it has my maiden name, so I guess he [the officer] just wrote that that way.

Based upon the victim’s testimony, the judge quashed the bill of information, concluding that the automobile was community property.

I .ASSIGNMENT OF ERROR

The State maintains that the trial court erred by quashing the bill of information. The defendant, as noted at the beginning of this opinion concedes that this is correct. The only argument made by the defendant is that this is really just a squabble between a married couple over the use of an automobile and not a criminal matter. The defendant contends that if this Court were to remand the case for a consideration of the ownership of the automobile, the result will be the same because the trial court will once again dismiss the case based on a finding that the automobile was community property. Therefore, in the interest of judicial economy, the defendant contends that we should affirm a judgment that all concerned agree was incorrect. The defendant notes that the State has referred to no potential facts tending to prove that the automobile was the victim’s separate property. However, we must assume, in the absence of any evidence to the contrary, that the State would not knowingly pursue a meritless prosecution.

In this case, there is no written motion to quash in the record, and oral motions to quash are not considered. State v. Joseph, 2009-1169 (La.App. 4 Cir. 3/24/10), 35 So.3d 422. The defendant concedes in his brief that no written motion to quash was filed. Without a written motion to quash being presented to the district court, the trial court errs by quashing the bill of information. Id.; La.C.Cr.P. art. 536.

Based on the foregoing, we find that the motion to quash should not have been granted.

^DECREE

For the reasons set forth above, we vacate the trial court’s ruling that quashed the bill of information and remand to the trial court for further proceedings consistent with this opinion.

VACATED AND REMANDED.