author: PETERS, J.

text:
    Fernen Louis ANDREPONT, et al. v. CHEVRON USA, INC., et al.
    No. 12-1100.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      Stephen B. Murray, Arthur M. Murray, Jessica W. Hayes, Korey A. Nelson, Murray Law Firm, Stuart H. Smith, Michael Gregory Stag, Amber E. Cisney, Smith Stagg, L.L.C., New Orleans, LA, Warren A. Perrin, Perrin, Landry, Delaunay, Dar-tez & Ouellet, Lafayette, LA, for Plaintiffs/Appellants, Fernen Louis Andrepont, et al.
    Morgan J. Wells, Jr., Day M. Peacocke, Stephen M. Larzelere, Evan J. Godofsky, Larzelere Picou Wells Simpson Lonero, LLC, Metairie, LA, for Defendant/Appel-lee, Radke Oil Co., Inc.
    Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Rodell Parsons Koch Blanche Balhoff & McCollister, Baton Rouge, LA, for Intervenor/Appellee, Office of Conservation, Louisiana Department of Natural Resources, Commissioner of Conservation James Welsh.
    Charles R. Minyard, Lafayette, LA, for Defendant/Appellee, Apache Corporation.
    George Arceneaux, III, Jamie D. Rhymes, Penny L. Malbrew, Liskow & Lewis, Kyle P. Polozola, Dupuis & Polozo-la, LLC, Lafayette, LA, for Defendant/Ap-pellee, BP Corporation North America, Inc.
    Katie Caswell Cambre, Robert B. McNeal, Mark L. McNamara, James E. Lapeze, Liskow & Lewis, New Orleans, LA, for Defendant/Appellee, ExxonMobil Corporation.
    Michael R. Phillips, L. Victor Gregoire, Jr., Esteban Herrera, Jr., Kimberly K. Hymel, Melissa M. Cresson, Kean, Miller, etc., Baton Rouge, LA, for Defendant/Ap-pellee, Chevron USA, Inc., et al.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   PETERS, J.

hThe numerous plaintiffs in this oilfield contamination litigation appeal the trial court’s grant of a summary judgment dismissing their claims against one of the defendants, Radke Oil Company, Inc. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

The plaintiffs are individual owners of immovable property located in Acadia Parish, Louisiana, located near the historic Jennings Field, the site of the first oil production in Louisiana. This litigation began on January 16, 2006, when the plaintiffs, Fernen Louis Andrepont, Stacy H. Britt, Barbara Miller Chapman, Glenn D. Daigle, Sr., Anita D. Decker, the Fruge Children Trust, Raven Gotte, Jr., Carroll Hebert, David Wayne Hebert, Norman Hebert, Aulden R. Miller, Kenneth L. Miller, Jr., Steven J. Simar, and Patricia A. Vidrine, filed suit against twelve named defendants seeking damages for the contamination of their properties caused by oil and gas exploration in the nearby Jennings Field. Only one of the twelve defendants, Radke Oil Company, Inc. (Radke), is involved in this appeal.

In their petition, the plaintiffs asserted their ownership of individual tracts of immovable property located in Sections 42 and 43, Township 9 South, Range 2 West, in Acadia Parish. They alleged that Rad-ke and the other defendants, in conducting oil and gas drilling and production activities on or near their properties, had in the past utilized unlined earthen pits for the storage of oilfield wastes, and this utilization resulted in the contamination of their properties. They further ^asserted that despite knowing from the 1930s, that the use of unlined pits led to surface and subsurface contamination, the defendants continued using these pits for the storage of oilfield wastes, which included naturally occurring radioactive materials, technically enhanced radioactive materials, drilling fluids, chlorides, hydrocarbons, and heavy metals. According to the plaintiffs’ allegations, other contamination to their properties was caused by the “leaks, spills, and other discharges from oil wells, pipelines, tank batteries, plants and other equipment owned or operated by” defendants. The plaintiffs alleged that although the defendants knew or should have known that their day-to-day operations would lead to contamination, they refused to remove the pollution and toxic wastes caused by their endeavors and chose, instead, to hide it. This, the plaintiffs alleged, allowed the pollution and toxic waste to migrate and spread to the soils, surface waters, and groundwater of their properties. Based on the above stated facts, the plaintiffs sought monetary damages based on theories of negligence, trespass, strict liability, strict liability for ultra-hazardous activity, and breach of contract and obligations as lessee.

The early procedural aspects of this litigation involved consideration of numerous exceptions filed in response to the plaintiffs’ petition and resulted in the plaintiffs’ pleadings being amended extensively. The issue giving rise to this appeal was raised by Radke in a motion for summary judgment filed on September 20, 2011. Following a February 2, 2012 hearing, the trial court granted Radke’s motion and dismissed the plaintiffs’ claims against it. The trial court executed a judgment to this effect on the same day as the hearing, and the plaintiffs perfected this appeal. In their appeal, they raise two assignments of error:

|sl. The judgment is contrary to law because the trial court improperly concluded that Radke met its initial burden on summary judgment.
2. The judgment is contrary to law because the trial court improperly imposed a heightened evidentiary standard on the Plaintiffs when it rejected the evidence submitted by the Plaintiffs as insufficient to create an issue of material fact.

OPINION

The law pertaining to summary judgment was exhaustively reviewed by the supreme court in the recent case of Schultz v. Guoth, 10-343, pp. 5-7 (La.1/19/11), 57 So.3d 1002, 1005-06 (alteration in original):

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all 'or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83; Duncan v. U.S.A.A, Ins. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 546, see La.Code Civ. Proc. art. 966. “A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83.
A motion for summary judgment will 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 mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). This article provides that “the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. Code Civ. Proc. art. 966(A)(2). La.Code Civ. Proc. art. 966(C)(2) sets forth the burden of proof in summary judgment proceedings, providing:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, 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, action, or defense. Thereafter, if the |4adverse 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.
This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, 07-1726, p. 4, 977 So.2d at 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Id. (quoting Wright v. Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058,1069-70).

Radke attached to its September 20, 2011 motion for summary judgment, a memorandum in support of the motion; copies of answers to interrogatories it propounded to the plaintiffs; thirty-one pages of requests for production propounded to the plaintiffs; and the affidavit of Lee A. Day, a senior geologist with Toxicological and Environmental Associates, Inc. in Baton Rouge, Louisiana.

In their answers to the interrogatories, the plaintiffs acknowledged that they had no evidence of leaks, spills, or discharges attributable to operations by Radke nor did they have any information to suggest that Radke ever disposed of oilfield waste in unlined earthen pits on or near any of their property. Additionally, they acknowledged that they had no evidence to establish that Radke knew or should have known of pollution activity or that Radke participated in any cover up of such activity. In response to Radke’s requests for production, the plaintiffs produced no evidence or documentation which might tend to prove any element of the fault against Radke asserted in their pleadings.

|fiMr. Day stated, in his affidavit, that using his twenty-two years of experience in geological, hydrogeological, and environmental areas, he researched and mapped the location of the sixty-six Radke wells identified by the plaintiffs in their pleadings, as well as numerous other wells located near or adjacent to the plaintiffs’ properties. Based on his research, Mr. Day determined that none of the Radke wells were located in Sections 42 or 48, Township 9 South, Range 2 West, Acadia Parish, Louisiana, but rather, were located in Sections 41, 46, 47, and 48 of Township 9 South, Range 2 West. He determined that the closest Radke well to the plaintiffs’ property in Section 42 is no closer than 0.95 miles from the westernmost parcel and as far as 0.39 miles from the easternmost parcel. With regard to the plaintiffs’ property in Section 43, he found that the closest Radke well is no closer than 1.1 miles from the westernmost parcel and as far as 0.95 miles from the easternmost parcel. Furthermore, based on information he obtained from the Louisiana Department of Natural Resources (DNR), Mr. Day found that' 136 wells, operated by parties other than Radke, were located within the 0.95 mile stretch between the closest Radke well and the easternmost boundary of the plaintiffs’ properties. Additionally, he noted that approximately nineteen wells were located on or immediately adjacent to the plaintiffs’ properties, and a total of 849 wells were operated in the land stretching from the easternmost Radke well and the westernmost portion of the plaintiffs’ properties.

Mr. Day voiced no opinion concerning the possibility of leakage from storage facilities on the plaintiffs’ lands or of leakage from pipes or flow lines transporting the petroleum or waste product from the producing wells to the storage areas identified as being (or having been) on the plaintiffs’ lands or in close proximity thereto. Instead, he limited his opinion to the plaintiffs’ assertions of | Jeaks, spills, and- discharges from the well locations causing damage to their property. In that regard, he opined that no spill or leak from the Radke wells would affect the plaintiffs’ properties because these two areas are situated on either side of the lowest elevation in the Jennings Field, which is approximately five to ten feet above mean sea level. He stated that the plaintiffs’ properties are located at approximately twenty-five to thirty feet above mean sea level. Mr. Day further determined that based on the north to northwesterly flow of shallow groundwater in the area of the plaintiffs’ properties, the groundwater would flow towards the Radke wells rather than from the Radke wells towards the plaintiffs’ properties.

On January 17, 2012, the plaintiffs filed a brief in opposition to the summary judgment motion and attached the affidavit of Gregory W. Miller, a geologist and principal of ICON Environmental Service, Inc., a Baton Rouge, Louisiana company. In his affidavit, Mr. Miller asserted that he is a geologist with over twenty years of experience and that he was hired by the plaintiffs to determine whether the years of oil and gas exploration had caused soil and groundwater contamination of their properties. He did not specifically respond to Mr. Day’s opinion concerning spills at the well sites. Instead, he asserted that he had reviewed historical aerial photographs, historical pit maps, and data from a related litigation to conclude that the contaminated condition of the plaintiffs’ properties had been caused not by the oil and gas activity,- but through the storage of oil and production wastes. Mr. Miller explained that both the oil and production waste produced through the drilling process were stored in earthen holding pits or tanks located a significant distance away from the production field in order to avoid encroachment on future well locations in the field. The oil and/or production waste was transported to the holding pits from the well site through six-inch j7diameter surface flow lines. He determined this historical fact by overlaying 2007 aerial photographs of the plaintiffs’ properties with historical pit maps.

Based on his study, Mr. Miller confirmed the presence of two holding pits on the plaintiffs’ properties and four located adjacent to their properties. With these locations in mind, he then studied the location of flow lines indicated on the historic maps and determined that they connected the pits to the production areas located east of Highway 97. Mr. Miller asserted that he then plotted the locations of several of Radke’s wells and determined that the flow lines to the six earthen pits “appear to originate from wells operated by Radke, among others.” He summarized his findings by stating, “In my opinion, these flow lines transported oil production with some quantity of produced salt water from the Radke wells to these pits for storage[,]” and “In my opinion, the storage of oil production in these pits would result in contamination of the surrounding areas.” Two days after the plaintiffs filed their opposition to the summary judgment motion, Radke filed a response to the opposition wherein it attached a second affidavit of Mr. Day. In this affidavit, Mr. Day pointed out that the maps relied on by Mr. Miller, to support his opinion that the flow lines from the earthen pits originated, in part, from the Radke Wells, contained no markings referencing the locations of the earthen pits, the flow lines, or the Radke wells at issue. He also noted that Mr. Miller concluded only that “these flow-lines appear to originate from wells operated by Radke, among others[.]” (Emphasis in affidavit.)

Mr. Day also directed the trial court to a reference publication identified as the Louisiana Geological Survey’s September 2001 Public Information Series No. 9 document, entitled Jennings Field — the birthplace of Louisiana’s Oil Industry. In referencing this publication, ■ he attached copies of pages from the document |8which clearly established the presence of large earthen pits in the field. According to Mr. Day, that document establishes that there were two periods of oil exploration in the Jennings Field: 1903 to 1912; 1939 to 1950. Based on the DNR database, he estimated that 946 wells were drilled in the Jennings Field between 1903 to 1912, and he acknowledged the presence of large earthen pits used for the storage of oil. A statement from the reference publication asserts, “Oil storage was often a problem during this period. A storage tank is shown in the left foreground, but larger volumes of oil were often stored in huge open pits. Armed guards would patrol the reservoirs, and ducks would sometimes land in these apparent ‘lakes’ of oil.”

Mr. Day also directed the trial court’s attention to a book entitled Oil Field Trash: Life and Labor in the Oil Patch by Bobby D. Weaver. He attached four pages from the book relating to the history of oil and production waste storage, wherein Mr. Weaver wrote that “[b]y mid-1917 open pit oil storage on the Gulf Coast was credited with creating a 2 percent to 8 percent seepage, which amounted to a loss of 8,000,000 barrels of oil per year.” According to Mr. Weaver’s book, “[t]he use of these massive open storage pits continued to some extent until 1919[.]” At that time, according to Mr. Weaver, the Texas Railroad Commission “issued a general ban on the practice of storing light oils in open earthen tanks.” The excerpts from Mr. Weaver’s book make no mention of when the practice was banned in Louisiana or whether the ban applied to production waste as well; nor did it address the pollution issue. It simply suggested that the practice of using massive open storage pits was stopped because of the. amount of valuable oil that was being lost in the process. In the attached two pages, Mr. Weaver stated that |flearthen pits were initially replaced by concrete tanks because of the shortage of steel due to World War I activity, and these type of storage tanks were continuously used in to the mid-1920’s. However, by 1919, they were starting to be replaced on a regular basis with steel tanks.

Using the information from the two pages of Mr. Weaver’s book, Mr. Day made the following statement in his affidavit:

Due to seepage loss at a rate from 2% to 8%, earthen pits for storage of oil were discontinued in the Gulf Coast prior to 1920. Storage tanks were being constructed of steél, concrete or wood and were used extensively beginning in the early 1920’s. By the mid 193Ó’s to early 1940’s, steel had totally replaced concrete or wood for storage tank construction!.]

We must note, however, that Mr. Day’s opinion is based solely on Mr. Weaver’s research which makes no mention of the conditions in the Jennings Field and appears to be limited to the situation in the Texas oil fields.

While basing the opinion cited above on information which may or may not have been applicable to the Jennings Field, Mr. Day did not stop his research at that point. He asserts in his affidavit that he also researched the sixty-six wells listed by the plaintiffs in their second-amended petition as being operated by Radke using DNR historical records, and he noted that Rad-ke’s first appearance in the Jennings Field was in 1947, when it commenced operations on six wells: the Jennings Oil Co-Heywood # 1; the Radke Oil-Jules Clement # 34; the Clement # 12; the Jennings Oil Co-Heywood #3; the Jennings Oil— Clement-Heywood #5; and the Clement JOC # 31. Based on his research, he concludes that by the time Radke entered the Jennings Field in 1947, steel tanks were being used for oil storage; thus, the prior existing flow lines and earthen pits which allegedly contaminated the plaintiffs’ properties were never used by Radke.

110After considering the arguments of counsel and reviewing the record before it, the trial court concluded that the plaintiffs did not “produce factual support sufficient to establish that [they] will be able to satisfy [their] burden of proof at trial” and, therefore, “there is no genuine issue of material fact.” La.Code Civ.P. art. 966(C)(2). While providing no specific reasons for judgment, the trial court noted, in the verbal exchanges during the hearing on the motion, that there was an absence of proof concerning who maintained the pits and mishandled the product at the time of contamination and that Mr. Miller’s assertion that the flow lines only appeared to originate from wells operated by Radke was not sufficient to establish, by a preponderance of the evidence, that they did in fact originate from those wells or that Radke was responsible for any pollution at the time it occurred.

In their first assignment of error, the plaintiffs assert that the evidence initially submitted by Radke in support of its motion was not sufficient to cause the burden of proof to shift to them as required by La.Code Civ.P. art. 966(C)(2). We disagree. While Mr. Day’s affidavit addressed only the plaintiffs’ claims associated with spills, leakage, and/or discharges from the well locations not situated on the plaintiffs’ properties, the answers to interrogatories and responses (or lack of responses) to Radke’s requests for production established that the plaintiffs had, at that time, not provided any proof of Rad-ke’s liability for the claims asserted. The showing made by Radke was sufficient to cause the burden to shift to the plaintiffs, as required by La.Code Civ.P. art. 966(C)(2). We find no merit in this assignment of error.

Next, the plaintiffs assert that the trial court applied a heightened evidentiary standard by rejecting their assertion that their response to the motion for summary | djudgment established a genuine issue of material fact. We find no merit in this assignment of error as well.

While La.Code Civ.P. art. 966(C)(2) speaks in terms of the nonmov-ant being able to “satisfy his evidentiary burden of proof at trial,” this does not require a determination of fact by the trial court. It simply requires the nonmovant to present evidence that if believed by the trier of fact, would allow he or she to prevail at a trial on the merits. In this case, and without considering Mr. Day’s second affidavit, we find that nothing presented by the plaintiffs reaches that threshold. • At best, Mr. Miller’s affidavit establishes that the flow lines “appear” to originate from wells operated by Radke. This assertion, standing alone and if believed by the trier of fact, does not satisfy the plaintiffs’ preponderance burden of proof. This is particularly true given the fact that it does not establish whether Radke was an operator of any of the wells at the time the oil and/or waste material was being transported through the flow lines or whether it assumed any responsibility for the actions of previous operators. We find no merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the motion for summary judgment of Radke Oil Company, Inc., and dismissing the claims of the plaintiffs against it. We assess all costs of this appeal to the plaintiffs, Fernen Louis Andrepont, Stacy H. Britt, Rhonda Parsley Burger, Barbara Miller Chapman, Glenn D. Daigle, Sr., Anita D. Decker, the Fruge Children Trust, Raven Gotte, Jr., Carroll Hebert, David Wayne Hebert, Norman L. Hebert, Debra Lois Ivan, Aul-den R. Miller, Kenneth L. Miller, Jr., Mona Benoit Parsley, Steven J. Simar, and Patricia A. Vidrine.

h2AFFIRMED.

      . The named defendants are Chevron U.S.A. Inc., successor in interest to Gulf Oil Company and Texaco, Inc.; Exxon Mobil Corporation, successor in interest to Exxon Corporation, Humble Oil & Refining Company, and Superior Oil Company; Radke Oil Company, Inc.; Great Southern Oil & Gas Company, Inc.; EOG Resources, Inc.; BP Corporation North America Inc., successor in interest to Yount Lee Oil and Amoco Production Company; Shell Oil Company; Kerr-McGee Oil and Gas Corporation, successor in interest to Sun Exploration-Production; Apache Corporation; Source Petroleum, Inc.; L & L Oil and Gas Services, Inc.; and Denovo Oil & Gas, Inc.

      . These amendments included the addition of other parties to the litigation.

      . The first two pages provide a partial history of oil storage problems along the "Gulf Coast," and the other two pages list the refer-enees Mr. Weaver used to reach the facts asserted on those two pages.


source: Caselaw Access Project

license: Public Domain

text:
    Markus TRAUTMANN, et ux. v. Charles G. FITZGERALD, et al.
    No. 12-1270.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      Patrick J. Briney, Briney & Foret, Steven C. Lanza, Onebane Law Firm, Lafayette, LA, for Defendants/Appellees, Charles G. Fitzgerald and Jeanne Fitzgerald.
    J. Clemille Simon, Kevin R. Duck, Duck Law Firm, Lafayette, LA, for Plaintiffs/Appellants, Markus Trautmann and Kelly Trautmann.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   PETERS, J.

LThe plaintiffs, Markus and Kelly Trautmann, appeal from the trial court judgment granting summary judgment dismissing their claims against the defendants, Charles G. Fitzgerald and his wife, Jeanne Fitzgerald; and their liability insurer, USAA Casualty Insurance Company (USAA). For the following reasons, we reverse the trial court judgment and remand for further proceedings.

DISCUSSION OF THE RECORD

In 2010, the Fitzgeralds purchased property in Lafayette, Louisiana, located at 208 Acacia Lane. The house located on the property had been vacant for at least seven years and was in a state of disrepair; and their initial intent was to demolish and replace the structure. However, after considering the results of an inspection by Lawrence Pellerin, a licensed home inspector, and the recommendations of Mark Owen Pritchard, a home designer, the couple decided to repair and renovate the existing structure.

After Mr. Pritchard prepared plans and specifications for the renovation project, the Fitzgeralds sought bids for the work to be performed from a number of contractors, including Markus Trautmann. Mr. Trautmann met on site with the Fitzger-alds on December 12, 2011, and obtained a copy of the renovation plans, but not the inspection report prepared by Mr. Pelle-rin. Seven days later, on December 19, 2011, he returned to examine the structure and obtain the information he needed to prepare his bid. As he peered over the balcony railing on the second story porch, the railing gave way, and Mr. Trautmann fell to the ground. The fall caused him serious personal injuries.

In their suit against the Fitzgeralds and USAA, the Trautmanns sought damages based on the theories of negligence and strict liability. The defendants answered the claims, asserting that they were not liable to the Trautmanns for the |2damages sustained because the condition of the house was obvious and Mr. Trautmann’s own negligence was the legal cause of his injuries. Thereafter, the defendants moved for summary judgment on the issue of liability, and, following a hearing on the motion, the trial court granted judgment in their favor dismissing the Trautmanns’ claims. The Trautmanns timely perfected this appeal, asserting four assignments of error.

1.The Trial Court committed manifest error and abused its discretion by erroneously applying a “repairman” exception to the strict liability standard applicable in this case.
2. The Trial Court committed manifest error by granting summary judgment where material facts were at issue and the defendant was not entitled to judgment as a matter of law.
3. The Trial Court committed manifest error by finding that Markus Traut-mann was a “repairman” at the time of the accident.
4. The Trial Court committed manifest error by granting summary judgment and dismissing plaintiffs entire case where the plaintiff plead facts supporting a claim for negligence and the record supports plaintiffs negligence cause of action.

OPINION

The law applicable to a situation where damage is caused by a defective thing is found in La.Civ.Code art. 2317.1, which reads as follows:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

laWhen the defective thing causing the damage is a building, La.Civ.Code art. 2322 applies. That article provides:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In Meaux v. Wendy’s International, Inc., 10-111, pp. 14-15 (La.App. 5 Cir. 10/26/10), 51 So.3d 778, 788, writ granted on other reasons, 10-2613 (La.5/13/11), 69 So.3d 412, the court explained the difference between the prior strict liability law and that currently existing:

La. C.C. arts. 2317 and 2317.1 define the basis for delictual liability for defective things. La. C.C. art. 2322 defines the basis for delictual liability for buildings. Prior to 1996, an owner’s liability for a vice or defect on the premises was rooted in La.C.C. arts. 2317 and 2322. See, e.g., Celestine v. Union Oil Co. of California, [94-1868] (La.4/10/95), 652 So.2d 1299. Both La.C.C. art. 2317 and art. 2322 formerly imposed strict liability based upon status as owner or custodian rather than on personal fault. Id. at 1303. In 1996, the Louisiana legislature adopted La. C.C. art. 2317.1 and significantly amended La. C.C. art. 2322.

With regard to the issue now before us, the supreme court, in the recent case of Schultz v. Guoth, 10-343, pp. 5-7 (La.1/19/11), 57 So.3d 1002, 1005-06 (alteration in the original), thoroughly reviewed the state of the summary judgment law which would have been in effect at the time of this accident:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83; Duncan v. U.S.A.A. Ins. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 546, see La.Code Civ. Proc. |4art. 966. “A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83.
A motion for summary judgment will 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 mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). This article provides that “the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. Code Civ. Proc. art. 966(A)(2). La.Code Civ. Proc. art. 966(C)(2) sets forth the burden of proof in summary judgment proceedings, providing:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, 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, action, or defense. 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.
This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case.' Samaha v. Ran, 07-1726, p. 4, 977 So.2d at 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Id. (quoting Wright v. Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058,1069-70).
| Summary Judgment Evidence Presented by the Defendants

In support of their motion for summary judgment, the Fitzgeralds offered their individual affidavits, the affidavits of Patrick S. Ottinger and Mr. Pritchard, and Mr. Pellerin’s home inspection report.

Mr. Fitzgerald’s Affidavit

The content of this affidavit asserts that Mr. Fitzgerald and his wife used Mr. Pellerin’s inspection report to solicit bids for the project and that they relied on Mr. Trautmann to obtain the information he needed to prepare his bid. He noted in the affidavit that Mr. Pellerin’s inspection report noted the presence of live termites on the balcony’s wood columns as well as spacing problems with the balcony guardrails. He confirmed that on the day of the accident, Mr. Trautmann was seeking information to help him in the bid process and was not performing any repair or renovation work on the structure.

Mrs. Fitzgerald’s Affidavit

Mrs. Fitzgerald added to her husband’s affidavit by asserting that she offered a copy of Mr. Pellerin’s inspection report to Mr. Trautmann at the December 12, 2011 meeting, but that he refused her offer. She attached a number of photographs taken by her shortly after the accident to her affidavit. It is not disputed that these accurately reflected the condition of certain parts of the premises at the time of Mr. Trautmann’s accident.

Mr. Ottinger’s Affidavit

Mr. Ottinger owned the limited liability company that sold the 208 Acacia Drive property to the Fitzgeralds. He asserted in his affidavit that the house had been vacant and abandoned for approximately seven years before the transfer and that the state of disrepair was obvious upon inspection and presented a hazard to | ^anyone who might visit. In fact, when he purchased the property through his limited liability company, he had initially contemplated demolishing the structure down to the foundation, and he even obtained a $11,275.00 offer to accomplish that end.

Mr. Pritchard’s Affidavit

In his affidavit, Mr. Pritchard stated that he was retained by the Fitzgeralds to completely redesign the house. To that end, he prepared plans and specifications which included the removal and replacement of the front balcony and handrails.

Mr. Pellerin’s Home Inspection Report

In the section pertaining to decks, balconies, stoops, steps, areaways, porches, patio/cover and applicable railings, Mr. Pelle-rin’s report states:

Some deterioration and rot damage observed at the porch and upstairs area wood columns and balcony plywood floor areas, indicating water penetration and what appears to be damage as a result of wood destroying insects. Water had been able to penetrate from the upstairs balcony through seams in the wood boards that were not fully sealed/ caulked. I did see live termites in one of the wood columns installed at the driveway side of the back porch area, in the presence of Ms. Fitzgerald. I did see some uniform holes located in the top of some of the upstairs wood columns, perhaps to allow a pest control company to treat for termites. My personal opinion would be to replace all wood columns with matching columns, and with fiberglass as a preventative measure against water issues. As far as the deterioration and rot damage observed in the upstairs balcony floor areas, this is limited to areas where the columns are installed with all of the .2x6 wood boards being exposed on the bottom of the balconies, which is a plus. The back side balcony corner are [sic] has a sag of about two inches, due to some deterioration and rot damage. Many of the porch floor tiles are loose and detaching or not secured very well to the concrete foundation slab therefore, I would recommend totally removing the tiles. Last, I am concerned about the spacing between the guardrail wood spindles, being that a small child or pet could slip through and fall to the ground.

(Parenthetical information omitted.) (Emphasis added.)

17In the comments to this section, Mr. Pellerin entered the notation: “Inspected, Repair or Replace.”

Mr. Pellerin’s report further states that with regard to the house’s exterior:

Paint flaking throughout the exterior side of the home, located on the wood trim and wood lap siding, which could be the result of an improper paint job or possibly lead. One issue that I can see was occurring although it is not occurring presently, is that vines were allowed to grow up against the home, which can allow the vines to grow into the walls and attic areas, and can lead to the issue with moisture and deterioration.
Summary Judgment Evidence Presented by the Plaintiffs

In their opposition to the motion, the Trautmanns provided the trial court with copies of their deposition testimony as well as the deposition testimony of the Fitzger-alds; Mr. Pellerin; Mr. Pritchard; and Mr. Trautmann’s carpenter, Mickey Fonte-not.

Deposition Testimony of Mr. Trautmann

Mr. Trautmann, who is originally from Germany, testified that he received an engineering degree in architecture from Ho-here Technische Lehranstalt, an Austrian university. However, he never acquired the honorific of architect because he did not complete the required three years of work in that field after graduating. He received his Louisiana residential and commercial contractor’s license in 1999, and thereafter began a design/construction business in Lafayette, Louisiana

According to Mr. Trautmann, he only met with the Fitzgeralds for approximately one hour on January 12, 2011. At that time, he obtained a copy of the redesign plans to be used in calculating his bid. Mr. Trautmann disputed Mrs. Fitzgerald’s assertion that at this meeting, she offered him a copy of the inspection report. He also acknowledged, however, that he did not request a copy. During that visit, he did observe some termite damage in a back porch column.

|sHe returned to the site at approximately 9:00 a.m. on January 19, 2011, and performed a walk-through to determine if the house, as a whole, could be successfully renovated pursuant to the redesign plans. Being satisfied that the job could be accomplished within the parameters of the plans and specifications, he began inspecting the premises more closely to obtain the information he would need to prepare his bid. After approximately ninety minutes, he and Mickey Fontenot went out onto the front balcony to look at the floor. When he walked to the left railing and looked down to determine the nature of the finish on the wall below the balcony, he placed his left hand on the wall and his right hand on the top of the railing. He denied leaning over the railing or allowing any part of his body, other than his right hand, to touch the railing. As he stood there, the railing gave way and he fell to the ground below. When it collapsed, he felt little or no resistance and did not recall the railing making any sound as it gave way. He acknowledged that prior to his fall, he did not attempt to check the railing’s stability.

When questioned concerning his observations prior to his fall, he asserted that he did not notice a significant amount of rot, termite damage, or decay in the balcony and posts. He did notice that the railings were painted, but that they also had vegetation growing on them. He equated the vegetation to the area’s humid climate rather than the intrusion of moisture into the wood. He was aware that the house had been unoccupied for several years, and he observed that certain parts of the house were in a deteriorated condition. Additionally, based on his evaluation of Mr. Pritchard’s proposed renovation plans, he was aware that the balcony and railings were to be removed and rebuilt. He also acknowledged that the | photographs taken by Mrs. Fitzgerald depicted wood rot, termite damage, possible moisture intrusion, peeling paint, and vegetative growth on the railings.

Mr. Trautmann acknowledged that based on his background and training, he was in a better position to determine whether the railing was safe than were the Fitzgeralds. However, he stated that the best person to make this determination was Mr. Pellerin, because, as a house inspector, it was his job to evaluate the integrity of every system in a house in order to discover what can be repaired versus what must be replaced. Had he been provided with a copy of Mr. Pellerin’s report with the “Repair or Replace” notation with regard to the railings, he would have been more cautious in his approach to the railings — even to the extent of inspecting them himself. He explained that such a notation in an inspection report is an indication to a contractor, such as he, that the item’s current condition is not fit for its intended purpose. Absent knowledge of that notation’s inclusion in the inspection report, he did not find that the porch and railings appeared to be obviously and openly dangerous. That is to say, he found nothing to suggest that the situation was unsafe for him to perform his inspection. Although he was aware from Mr. Pritchard’s plans that the balcony and railings were to be rebuilt and replaced, nothing in those plans gave him cause to believe that they were being replaced because they were unsafe.

Deposition Testimony of Mrs. Traut-mann

Mrs. Trautmann’s deposition presented little direct information concerning the particulars of the accident itself. She learned of the accident through a telephone call from Mickey Fontenot and later was informed that the finishing |innails used to construct the railing had rusted through. She described a finishing nail as one which would not be apparent to a visual inspection because it has no head and is driven below the wood’s surface and the entrance hole is puttied over.

Deposition Testimony of Mrs. Fitzgerald

Mrs. Fitzgerald testified in her deposition that neither she nor her husband had any experience in constructing or renovating a structure. She testified that she personally toured the house at 208 Acacia Lane in the company of Mr. and Mrs. Ottinger before she and her husband purchased it. However, during that tour she did not go onto the balcony because she was not sure it was safe. After Mr. Pelle-rin completed his inspection, she again walked throughout the house, including the balcony. After that experience, she felt fairly safe in walking on the balcony. Later, she accompanied Mr. Pritchard when he made his inspection of the house, but did not go onto the balcony on this occasion.

According to Mrs. Fitzgerald, at no time did the Ottingers, Mr. Pellerin, or Mr. Pritchard state to her that the balcony was unsafe. At most, Mr. Pellerin based his recommendation that the posts and railings be replaced because they were not up to the requirements of the applicable building codes, and they were in bad condition. Additionally, the redesign plans called for deeper porches so the existing roofline and balconies were all being replaced. Still, she suggested that a mere visual inspection made it obvious that the balcony was unsafe. In explaining this comment, Mrs. Fitzgerald stated that everybody in the neighborhood knew the house had been vacant for over five years, windows were boarded up, the front porch columns were rotten at the bottom, porch tiles were popping off, paint was peeling off and chipping, there were wasps, the gutter on the front balcony was hanging down, loose spindles existed on the balcony railing, and moss was growing on the railing.

k-i Mrs. Fitzgerald initially met Mr. Trautmann on January 12, 2011, and her husband later joined them. During that meeting, they did not go onto the balcony. Her testimony supported her assertion in her affidavit that she offered Mr. Traut-mann a copy of the inspection report at the same time she gave him the renovation plans, but that he declined her offer. Furthermore, during this meeting her husband warned Mr. Trautmann that the porches were in bad condition.

Mrs. Fitzgerald saw Mr. Trautmann at the house on the morning of January 19, 2011, but left before the accident. She gave him no warning concerning her opinion of the condition of the balcony and railing, but testified that she did not believe the railing was in such bad condition that it would have fallen without some weight being pressed against it. After learning of the accident, she returned to the house and took pictures of the premises, including the railing laying on the ground below the balcony. After the accident, no one was allowed on the balcony.

Deposition Testimony of Mr. Fitzgerald

Mr. Fitzgerald, who is a lawyer, reasserted his wife’s testimony that they have no background in construction work. However, based on his personal observation, the hazard posed by the railings on the balcony was far beyond being simply obvious. He observed vegetative growth protruding out of the wood, paint chips, buckling, dangling spindles, and a partially detached gutter. In fact, he considered the situation of the entire upstairs portion of the house to be so bad that he was afraid that if he and his wife might venture up there, the house might implode.

Despite this fear on his part, on January 12, 2011, when he joined his wife and Mr. Trautmann, they were both already upstairs. According to Mr. Fitzgerald, when Mr. Trautmann mentioned going out onto the balcony, he [Mr. Fitzgerald] 112commented, “You gotta be- kidding me. [Y]ou couldn’t pay me to walk out on those balconies.” He suggested that his response was not based on the findings of the inspection report, but on common sense as the balcony looked “very, very unsafe.” He felt that Mr. Trautmann’s reaction was dismissive of his comments, but he [Mr. Trautmann] did not go out onto the porch that day. Although he acknowledged glancing through Mr. Pelle-rin’s inspection report, Mr. Fitzgerald testified that he did not have to read the report to know that the balcony railings should be replaced.

Deposition Testimony of Mickey Fonte-not

Mr. Fontenot testified that he and Mr. Trautmann went out onto the balcony to examine the flooring for damage and, while they were there, he questioned Mr. Trautmann concerning the nature of the siding on the front of the house. Instead of walking downstairs to examine the siding, he, Mr. Fontenot, walked over to the right railing, and Mr. Trautmann walked to the left. As he looked at the wall below him, Mr. Fontenot heard a noise. When he turned around in response to the noise, he saw only Mr. Trautmann’s feet as he fell from the balcony. When he approached the area where Mr. Trautmann had fallen from, he observed Mr. Traut-mann lying on the ground below, and he noticed that the railing through which Mr. Trautmann had fallen was lying next to him, still in one piece.

Mr. Fontenot never saw the inspection report. He testified that had he received a copy, he would have reviewed it. Additionally, had he known of Mr. Pellerin’s notation in the report, he would have approached the balcony and railings in a more cautious way. He did acknowledge, however, that while on the balcony, he noticed that part of the railing was discolored, peeling paint, and missing balusters. He noted that the yellowish discoloration at the bottom of |j.¡several balusters, as depicted on one of the photographs, was caused by compromised paint which allowed moisture to penetrate the wood and rust the nails. Additionally, the photographs revealed moss or mildew growing on the bottom rail of the railing which gave way. Given his findings from these photographs, he stated that it would have been wise not to lean on the railing without first determining if it was secure. However, he stated that neither picture revealed that the wood was rotten.

Deposition Testimony of Mr. Pellerin

Mr. Pellerin is a licensed home inspector with ten years of experience as an inspector, but with thirty years of experience in maintenance and repair. He testified that he performed his inspection on August 26, 2010, and in doing so, visually inspected every system of the house. He agreed with Mr. Trautmann’s observation that a notation in the inspection report that a system should be repaired or replaced means that something is wrong with the item or that it should be looked at further.

As a part of bis overall obligations, Mr. Pellerin went onto the balcony and inspected the railing, which he described as a component of the balcony. He did not recall the particulars of this inspection, but testified that he would typically begin by checking for movement in the railing. Additionally, if he suspected the intrusion of water, he also would have probed the wood. His report stated that he observed some deterioration and rot in the porch, upstairs area, wood columns, and balcony plywood floor, as well as a two-inch sag in the back side of the balcony due to deterioration or rot damage. However, he denied that the entire balcony was damaged by rot. Mr. Pellerin testified that he saw live termites in a column on the back porch and dirt tracts or trails in other areas. In describing the house, Mr. 114Pellerin stated that it was obviously a “fixer-upper” and that it had been vacant for a long time based on the amount of neglect and deterioration evidenced.

Deposition Testimony of Mr. Pritchard

Mr. Pritchard testified that he received Mr. Pellerin’s home inspection report from the Fitzgeralds around the time they started this project. Although he had visited the house prior to being retained by the Fitzgeralds, he stated that he did not test or inspect the railings for sturdiness. Based on the contents of the inspection report and his own observations, Mr. Pritchard determined that the house could be renovated. His first completed set of house plans contemplated the removal of the existing porches and balconies, with them being rebuilt as deepened structures. Not only were the front-balcony handrails to be removed because they did not conform to the current building codes, but the removal was necessitated by the proposed redesign.

Mr. Pritchard testified that after Mr. Trautmann’s accident, he observed the railing lying on the ground. Although he did not inspect it closely, he said that it was basically still in one piece. He described the railing as consisting of a top and bottom rail, made from two by four inch boards, which he described as being positioned so that the width of the board was horizontal to the porch. The balusters were constructed from two by two inch boards and were attached to the top and bottom railings by nails which were toenailed or nailed into the railings at an angle. The assembled railings were then attached to the balcony posts by nails which were also toenailed. Mr. Pritchard described the toenailing of the nails into the bottom railing as well as the flat surface nature of the bottom rail, as having the effect of allowing water to accumulate in the nail hole. This accumulation of water in the hole caused the wood to rot and the nail fasteners to rust.

11sMr. Pritchard stated that Mr. Traut-mann’s accident merely confirmed his suspicions concerning the defective construction of the railing. His suspicions were further confirmed when the carpenters, who ultimately demolished the balcony, described to him and physically showed him how the balcony was constructed.

After the balcony was demolished, Mr. Pritchard observed that the railings were connected with small gauge nails, which he explained are more prone to rusting and weakening and, unlike screws, can be pulled out under the application of sufficient force. He further indicated that the nails used had smaller heads, so that when force was applied to the railing, rather than the nail pulling out, it stayed in place and the wood slipped over it. This presented more of a problem when the wood was rotten in the area where it was nailed. In that situation, the wood would be even more vulnerable to pulling free. After the accident, he definitely recalled seeing parts of the railing or posts, including connecting areas, that were rotten, but he could not specifically recall where they were located.

Mr. Pritchard voiced the opinion that the railing was poorly constructed based on the fact that there were no visible nails and because the wood was exposed in areas such that some portions were missing, other portions discolored, and other portions had vegetation growing on and around it. Although the presence of the vegetation did not necessarily mean that the wood was rotten, Mr. Pritchard thought that it indicated a lack of maintenance, which would cause him to question its condition. After reviewing photographs taken of the railing, Mr. Pritchard also opined that the railing detached from the wall and the corner post due to three conditions: the condition of the nails, the condition of the railing, and the way the railing was fastened to the wall and the post. In fact, it appeared to |inhim that the ends of the railing were compromised. He explained that a wooden board generally rots from its most vulnerable areas, which are the ends. Mr. Pritchard identified evidence of rust on the nails which were still attached to the railing, and he stated that the appearance of the nails indicated that they were pulled out of the balusters because they were unable to hold their place.

Not only did Mr. Pritchard conclude that the railings were substandard, but he found that the posts and the floor of the balcony were also very deteriorated. He testified that even if the design plans had not called for a redesign and extension of the porches, he would have recommended the replacement of the balcony railings, posts, and floor.

Mr. Pritchard further opined that the railing would not have failed absent the application of a weight or force. He stated that the failure of the railing from someone applying more than one-half of their weight to it, would not surprise him. He further agreed that the construction of the railing system on the balcony was substandard. Moreover, he stated that the poor condition of the house was obvious. Mr. Pritchard testified that the deterioration of certain elements of the house were obvious and that those obvious deteriora-tions led him to suspect other less obvious elements.

Action of the Trial Court

The trial court granted summary judgment in favor of the Fitzgeralds, based on its interpretation of the supreme court’s opinion in Celestine v. Union Oil Co. of California, 94-1868 (La.4/10/95), 652 So.2d 1299. Basically, the trial court concluded that the Celestine decision and the legislature’s subsequent amendment of the strict liability articles of the Louisiana Civil Code established a rule of law prohibiting a repairman from recovering damages for a strict liability claim arising |17under La. Civ.Code arts. 2317.1 and 2322. In issuing its ruling, the trial court stated that with regard to repairmen, “It simply does not apply to them.” In addressing Mr. Traut-mann’s claim, the trial court concluded that the Celestine decision would extend the repairman prohibition to those who go onto property for the purpose of preparing a bid to obtain a contract of repair.

Analysis

We find that the trial court erred in its interpretation of the Celestine decision. Rather than exclude any strict liability claim that might be asserted by a repairman, the supreme court recognized that a repairman could exert such a claim, but that Ms status as a repairman would be a significant factor to be considered in determining whether the risk posed by the defect of the thing or the building was unreasonable. Specifically, the supreme court stated:

We therefore conclude that an owner is strictly liable to a repairman for injury caused by a vice, defect or ruin on his premises only where the building or defect therein poses an unreasonable risk of harm vis-a-vis the repairman. Given that the determination of whether a risk is “unreasonable” is context specific, the fact that an injured party-was a repairman hired to fix the defect is a relevant factor in assessing whether the defect posed an unreasonable risk of harm.

Id. at 1305.

In exploring what might be considered an unreasonable risk of harm, the supreme court stated:

Thus, the determination of whether a particular risk of harm is reasonable is a matter wed to the facts of the case. Perhaps except only in ultrahazardous cases, it is impossible and improper to characterize a risk as unreasonable without consideration of the surrounding circumstances. Thus, any per se rule that an owner may never be held strictly liable to a repairman injured while repairing the alleged defect is unworkable and contrary to the fact intensive nature of the definition of “unreasonable risk.” Rather, the individual circumstances, including but not limited to the social, moral, economic considerations, the degree of knowledge of the repairman, the incentive or disincentive to the owner to repair the vice or defect, |1sthe reasonableness of presuming that a particular repairman is cognizant of the particular risks, and the ability of the repairmen to minimize such risks, should all be factored into and weighed in the “unreasonable risk” calculation. For example, the extent to which an owner’s incentive to repair the premises may be destroyed if held strictly liable to a repairman must be balanced against the repairman’s rights under La.C.C. art. 2322 to hold an owner answerable in damages for' defects or vices on the premises. To the extent that the Third Circuit may have adopted a per se rule of a “repairman” exception to an owner’s strict liability, such a ruling is not correct.

Id. at 1304.

Because the trial court erroneously concluded that as a matter of law, Mr. Traut-mann could not maintain a strict liability claim against the defendants, it never reached the issue of whether the defendants carried their initial burden of proof by establishing an absence of factual support for one or more essential elements of the Trautmanns’ claims. See La.Code Civ.P. art. 966(C)(2). However, the record before us is complete, and we will review the record de novo. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880.

As stated in Meaux, 51 So.3d at 788,

[A] plaintiff alleging strict liability of a building owner or custodian must now prove the following elements: (1) that the defendant knew or should have known of the vice or defect; (2) that the damage could have been prevented by the exercise of reasonable care; and (3) that the defendant failed to exercise such reasonable care. Cochran v. Safeguard Self-Storage, Inc., 02-1272 (La. App. 5 Cir. 4/29/03), 845 So.2d 1128, 1130. If the plaintiff fails to prove any one of these elements, the claim fails. Dauzat v. Thompson Const. Co., Inc., 02-989 (La.App. 5 Cir. 1/28/03), 839 So.2d 319. In addition, for strict liability to attach to a building owner or custodian, the “vice” or “defect” must constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Monson v. Travelers Property' & Cas. Ins. Co., 06-921 (LaApp. 5 Cir. 4/24/07), 955 So.2d 758; Loescher v. Parr, 324 So.2d 441, 446-147 (La.'l975).

We note it is also well settled that a landowner will not be held liable for damages cause by an open and obvious hazard. Ei-senhardt v. Snook, 08-1287 (La.3/17/19), 8 So.3d 541.

|1flIf 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, 03-1533 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. It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364,1371 (La.1984).

Id. at 544-45.

In reviewing the evidence submitted in support of their motion, we find that the defendants did carry their burden of proof as required by La.Code CivJP. art. 966(C)(2). In doing so, the defendants do not argue that no vice or defect exists. Instead, they presented sufficient evidence of an open and obvious hazard sufficient to shift the burden to the Trautmanns to “produce factual support sufficient to establish that [they] will be able to satisfy [their] evidentiary burden of proof at trial.” Id. Specifically, Mrs. Fitzgerald’s affidavit asserted that Mr. Trautmann was offered a copy of the inspection report that would have placed him on notice of the defective nature of the railing. Mr. Fitzgerald’s affidavit establishes that had Mr. Trautmann referred to the inspection report, he would have been aware that the balcony’s columns were infested with termites. Mr. Ottinger’s affidavit established that the house had been vacant for at least seven years before his limited liability company sold it to the Fitzgeralds and that the state of disrepair of the structure was obvious upon inspection and presented a hazard to anyone who might visit. Finally, Mr. Pellerin’s inspection report provided clear evidence that he found evidence of rot damage on the upstairs balcony floor areas where thej^columns were installed and that the spacing between the guardrail’s wood spindles was dangerous to small children. His report further established that the exterior of the house was in an obvious state of disrepair.

The Trautmanns’ burden was then to counter the defendants’ offerings with evidence sufficient to establish genuine issues of material fact. With regard to the first element of proof concerning the Fitz-geralds’ knowledge of the vice or defect, the deposition testimony of both Mr. and Mrs. Fitzgerald reveals that they had concerns with regard to the safety of the upstairs section of the house and, particularly, the upstairs balconies.

The deposition testimony of Mrs. Fitzgerald and Mr. Trautmann establish a conflict concerning whether Mrs. Fitzgerald offered Mr. Trautmann a copy of the inspection report at the initial meeting on January 12, 2011. According to Mr. Trautmann, access to that report was very important given the “Repair or Replace” notation entered into that report by Mr. Pellerin. Mr. Trautmann testified that a contractor would recognize this notation as a finding by the inspector that the item’s current condition was not sufficient for its intended purpose, and he would have exercised greater care. The deposition testimony of Mr. Pellerin supports this interpretation of such a notation.

Finally, concerning the open and obvious nature of the defect, there is no dispute but that the house was in a state of significant disrepair. However, that fact by itself does not render the defect in the railing an open and obvious defect. With the deposition testimony offered in opposition to the motion for summary judgment, the Trautmanns present conflicting views concerning the specific nature of the defect.

| n While concluding through her personal observations, that the balcony and its railings were an open and obvious hazard, Mrs. Fitzgerald also testified that no one ever told her that the balcony was unsafe. She understood that it was to be replaced because it did not meet the requirements of the existing building codes and the redesign plans called for deeper porches. Additionally, although Mr. Fitzgerald testified that he was not willing to take a chance on the integrity of the front balcony, his wife testified that after walking on the balcony with Mr. Pritchard, she felt fairly safe on the balcony. While noticing decay on the balcony, Mr. Fontenot found nothing that would have caused him concern in traversing that part of the structure; and neither Mr. Pellerin nor Mr. Pritchard recalled testing the sturdiness of the railings.

According, to Mr. Pritchard, he found the cause of the accident only after he personally inspected the accident scene and talked to the carpenters who ultimately demolished the balcony and remaining railings. At that point he found that the nails were improperly inserted, and he reached the conclusion that the initial construction of the railings was defective.

When considering a motion for summary judgment, we are precluded from weighing the facts and reaching conclusions based on those facts. Doe v. Hawkins, 09-1184 (La.App. 3 Cir. 6/9/10), 42 So.3d 1000, writ denied, 10-1612 (La.10/8/10), 46 So.3d 1270. Instead, our review is limited to a determination of whether there are genuine issues of material fact remaining. In this case, we find the existence of genuine issues of material fact which cannot be resolved by a summary judgment proceeding.

1 ^DISPOSITION

For the foregoing reasons, we reverse the trial court judgment granting the motion for summary judgment of the defendants, Charles G. Fitzgerald, Jeanne Fitzgerald, and USAA Casualty Insurance Company, and against the plaintiffs, Mar-kus Trautmann and Kelly Trautmann, dismissing their suit for damages. We remand the matter to the trial court for further proceedings and tax all costs of this appeal to the defendants, Charles G. Fitzgerald, Jeanne Fitzgerald, and USAA Casualty Insurance Company.

REVERSED AND REMANDED.

      . The Louisiana Legislature recently substantively amended the summary judgment law in 2012 La. Acts No. 257, § 1 and 2012 La. Acts 741 § 1. However, those amendments do not affect the analysis of this matter.


author: STEWART, J.

text:
    James H. DORTCH, Plaintiff-Applicant v. Ben J. ROLLINS, et al., Defendants-Respondents.
    No. 47,525-CW.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Hallack Law Firm, West Monroe, LA, by William H. Hallack, Jr., Dennis W. Hallack, for Plaintiff-Applicant.
    McNew, King, Mills, Burch & Landry, by Ashley S. Burch, Monroe, LA, for Defendants-Respondents.
    Before STEWART, LOLLEY and SEXTON (Pro Tempore), JJ.
   STEWART, J.

bThe plaintiff, James H. Dortch (“Dortch”), filed a writ seeking supervisory review of the trial court’s denial of a motion for summary judgment on his revoca-tory action against the defendants, Louisiana Leasing, L.L.C., Rolling Hills Farms of West Monroe f/k/& B & J Siding Distributors, Inc. (“Rolling Hills Farm”), and Ben J. Rollins (“Rollins”), individually and as president of Rolling Hills Farm and a member of Louisiana Leasing. This court granted the unopposed writ application and ordered the matter briefed and docketed for review. We now find that there is a genuine issue of material fact as to whether Dortch’s revocatory action is prescribed. Accordingly, we find no error in the trial court’s judgment denying Dortch’s motion for summary judgment and remand for further proceedings.

FACTS

On March 11, 2010, Dortch won a judgment against Rolling Hills Farm in the amount of $31,131 in a suit filed in 2008 to obtain his share of the proceeds from the sale of a horse. This revocatory action, which was filed by Dortch on June 16, 2011, stems from his efforts to collect the judgment rendered against Rolling Hills Farm.

Dortch’s petition alleged that he discovered during a judgment debtor examination of Rolling Hills Farm and Rollins on June 24, 2010, that the assets of Rolling Hills Farm, namely two pieces of immovable property, had been sold via quitclaim deed to Louisiana Leasing on June 5, 2009. The quitclaim deed was recorded on June 10, 2009. Though the quitclaim deed showed that the property was sold for consideration totaling $1,013,850, |2Portch alleged that Rolling Hills Farm did not receive any of the stated consideration and that it did not have any other assets. The petition alleged that the transfer of the immovable property rendered Rolling Hills Farm insolvent and that the transfer occurred after Dortch’s rights against Rolling Hills Farm and Rollins arose. Therefore, Dortch prayed to have the quitclaim deed annulled.

On July 29, 2011, the defendants filed an answer to the petition together with the peremptory exceptions of prescription and no cause of action. The defendants asserted that, because the March 11, 2010, judgment was against Rolling Hills Farm, Dortch has no cause of action against Rollins individually. They also asserted that Dortch has no cause of action for revocation because the quitclaim deed was executed before he added Rolling Hills Farm as a defendant in the underlying suit on January 4, 2010. Finally, the defendants asserted that Dortch knew or should have known about the transfer of the immovable property before June 15, 2010, and thus his claim had prescribed.

On February 8, 2012, Dortch filed a motion for summary judgment on his revo-catory action. In the opposition to the motion for summary judgment, the defendants asserted, in part, that there remained a genuine issue of material fact as to whether Dortch’s claim had prescribed. They asserted that Dortch should have learned of Rolling Hills Farm’s insolvency more than one year before he filed the revocatory action.

The trial court heard Dortch’s motion for summary judgment on April 3, 2012. After arguments, the trial court denied the motion upon finding |sthat genuine issues of material fact remain in dispute. In its oral ruling, the trial court referred to issues concerning the anteriority of the debt and the insolvency of the debtor. A judgment denying Dortch’s motion was signed on April 9, 2012. Thereafter, Dortch filed a writ seeking review of the adverse interlocutory ruling.

On June 14, 2012, this court granted Dortch’s unopposed writ and ordered the matter briefed and docketed for a decision. The motion for summary judgment is now before us for review.

DISCUSSION

Appellate courts conduct a de novo review of a grant or denial of a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. A motion for summary judgment must be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2); Hogg v. Chevron USA, Inc., 2009-2632 (La.7/6/10), 45 So.3d 991. A genuine issue is a “triable issue,” meaning one about which reasonable persons could disagree, and a material fact is one that is essential to the cause of action under the applicable theory of recovery. Hogg, supra.

Because Dortch will bear the burden of proof at trial on his revocatory action, the burden of proof on his motion for summary judgment remains with him as the movant. La. C.C.P. art. 966(C)(2). Therefore, the defendants’ burden is to “set forth specific facts showing that there is a |4genuine issue for trial” so as to avoid a summary judgment being rendered against them. La. C.C.P. art. 967(B).

A revocatory action is one where an obligee seeks to annul an act of an obligor, or the result of a failure to act, that is made or effected after the right of the obligee arose and that causes or increases the obligor’s insolvency. La. C.C. art. 2036. A revocatory action must be brought within the period set forth in La. C.C. art.2041:

The action of the obligee must be brought within one year from the time he learned or should have learned of the act, or the result of the failure to act, of the obligor that the obligee seeks to annul, but never after three years from the date of that act or result.

When an obligee seeks to annul an act of his obligor, the relevant date for the start of the prescriptive period is when the obligee learned or should have learned of the act. London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 2006-401 (La.10/17/06), 939 So.2d 1227. Prescription does not run from the date the obligee knows the act caused or increased his obligor’s insolvency. Id.

Dortch is seeking to annul an act of his obligor, Rolling Hills Farm. The act is the execution of the quitclaim deed by which Rolling Hills Farm sold or transferred its assets to Louisiana Leasing, without receipt of the consideration stated in the deed. In response to Dortch’s petition, the defendants asserted the peremptory exception of prescription. They have also raised prescription as a defense to Dortch’s motion for summary |,judgment. They argue that there is a genuine issue of material fact as to whether Dortch’s revo-catory action is prescribed.

In opposing Dortch’s motion, the defendants offered the affidavit of Robert S. Tew (“Tew”), the attorney who represented Rollins and Rolling Hills Farm in Dortch’s 2008 suit. Tew’s affidavit states Dortch did not add Rolling Hills as a defendant in the 2008 suit until two months before the March 11, 2010, trial. It further states that at a pretrial conference with the judge on the day of trial, Dortch’s attorney, Robert G. Foley (“Foley”), “expressed the concern that he may end up with a judgment against an ‘insolvent corporation.’ ” The defendants argue that Foley’s statement shows that he knew something about the insolvency of Rolling Hills Farm, the only corporation in the suit. They further argue that if Foley knew something, then surely his client Dortch, who is also Rollins’ son-in-law, should have known about Rolling Hills Farm’s insolvency. The logical extension of this argument is that knowledge of insolvency suggests that Dortch should have had knowledge of the act that cause the insolvency.

Dortch argues that Foley’s concern about getting a judgment against an insolvent corporation does not create a genuine issue of material fact as lfito whether he either knew or should have known about the quitclaim deed before the judgment debtor examination on June 24, 2010. Dortch offered an affidavit by Foley in support of his motion for summary judgment. Foley stated in his affidavit that he first learned during the judgment debtor examination of Rolling Hills Farm that it had transferred the immovable property to Louisiana Leasing. He then informed Dortch about the transfer, and this was the first Dortch had heard about it.

Dortch offered a second affidavit by Foley in response to Tew’s affidavit. In his second affidavit, Foley admitted that he could not recall what he said at the pretrial conference and so could not contradict Tew’s affidavit. However, Foley explained that if he did make the statement claimed by Tew, then he could not have been referring to the quitclaim deed transfer. He reiterated that he did not learn about the quitclaim deed until the judgment debtor examination. Foley’s affidavit states that there was nothing produced in connection with Dortch’s 2008 suit that would have placed Dortch on notice of the quitclaim deed. Notably, Foley does not explain what could have caused him to have any concern about obtaining a judgment against an insolvent corporation.

The issue here is not Dortch’s actual knowledge about the quitclaim deed transfers prior to the judgment debtor examination. The issue is whether Dortch should have known about the quitclaim deed transfers at an earlier time. This is a question of constructive knowledge. As explained by the supreme court, constructive knowledge sufficient to start the prescriptive period “exists when a party has sufficient information or notice |7to excite inquiry regarding a possible claim.” Id., p. 10, 939 So.2d at 1234. Such notice is tantamount to the knowledge or notice of everything to which a reasonable inquiry might lead. Hogg, supra. In determining whether a party had constructive knowledge sufficient to trigger the running of prescription, the ultimate consideration is the reasonableness of the party’s action or inaction in light of the surrounding circumstances. Id. Summary judgment is seldom appropriate where it requires a determination based on subjective facts, such as a party’s knowledge. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730.

Though by a slim margin, the opposition to the motion for summary judgment does raise a genuine issue of material fact as to whether Dortch should have known about the quitclaim deed transfers prior to the judgment debtor examination. TewN sworn statement, which is not contradicted by Foley, suggests some knowledge of Rolling Hills Farm’s insolvency when the judgment was rendered in Dortch’s first suit. If Foley had such knowledge of Rolling Hills Farm’s insolvency that led to him express the concern about obtaining a judgment against an insolvent corporation, then it is likely that Foley would have relayed such knowledge to his client Dortch or obtained such knowledge from Dortch, who is also Rollins’ son-in-law. The quitclaim deed is the act which is alleged to have caused Rolling Hills Farm’s insolvency. The evidence introduced on the motion for summary judgment indicates that the quitclaim deed was executed in June 2009. Thus, the issue is whether any knowledge by Foley or his client Dortch of Rolling Hills Farm’s insolvency at the time of the trial on March 11, 2010, |ssuffices as constructive knowledge by Dortch of the quitclaim deed and thus triggers the running of prescription prior to the judgment debtor examination. This is a factual determination that must be made by the trial court upon considering all the facts and circumstances of the case. It cannot be resolved on this motion for summary judgment by Dortch.

Because of the genuine issue of material fact as to whether Dortch’s revocatory action is prescribed, we will not review further his motion for summary judgment on the merits of his action.

CONCLUSION

For the reasons stated, we find no error in the trial court’s denial of Dortch’s motion for summary judgment and remand for further proceedings. Costs of the writ are assessed against Dortch.

AFFIRMED AND REMANDED.

      . After the matter was docketed and upon reviewing the record, this court ordered the trial court to supplement the record with any minutes or rulings pertaining to the exceptions or to inform this court if these exceptions had not been heard. The trial court responded that the exceptions had not been heard and that the defendants argued prescription in opposition to the motion for summary judgment. Dortch filed a motion for leave to respond to the order and to argue that the defendants waived the exception of prescription by failing to insist on a hearing. We now deny Dortch’s motion and find that the exception has not been waived. The issue of prescription may be raised on a motion for summary judgment. Hogg, supra; Labbe Service Garage, Inc. v. LBM Distributors, Inc., 94-1043 (La.App. 3d Cir.2/1/95), 650 So.2d 824. Here, though the defendants have not filed for summary judgment on the issue of prescription, they have asserted prescription as a defense to Dortch’s motion by arguing that there is a genuine issue of material fact as to whether his claim is prescribed.


author: CARAWAY, J.

text:
    Kim Ogden RUSSELL, Plaintiff-Appellant v. MORGAN’S BESTWAY OF LOUISIANA, LLC, Defendant-Appellee.
    No. 47,914-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Mulhearn & Smith, by Leroy Smith, Jr., Tallulah, LA, for Appellant.
    Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by Steven E. Soileau, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   CARAWAY, J.

liThe trial court granted the defendant’s motion for summary judgment in this trip and fall case. In this case, the plaintiff tripped over one of several stocking carts left along an aisle of the defendant’s grocery store. The plaintiff walked between two carts to retrieve a grocery item from the display case, but turned around and tripped on one of the carts. Video footage from a store camera recorded the accident. The trial court found that the carts were open and obvious and the plaintiff was aware of their location. For the following reasons, we affirm.

Facts

On Friday November 5, 2010, Kim Russell (“Russell”) and her husband were grocery shopping at Morgan’s Bestway of Louisiana, L.L.C. (“Bestway”), in Tallulah, Louisiana. Russell testified that she needed only one item. They entered the aisle wheré the dairy case is located at 9:47 a.m. in order to find-cream cheese. Russell claimed that she noticed several stocking carts alongside the refrigerated display of the products, but she thought that there was enough room between the carts for her to get her product. Russell stated:

I didn’t have to reach over them [the stocking carts] because ... they were probably about to my waist, you know. And there was an open hole there and I reached and grabbed the cream cheese, and I don’t know what happened then.

While she does not remember falling, Russell believed that the cause of her fall “had to be the cart.” Her petition alleges that she suffered several injuries as a result of the fall, including a herniated disc, bruises, and contusions. Black and white still photographs depicting the accident were |2taken from Bestway’s security camera’s recorded footage. These photographs are not very clear and depict only a portion of the aisle. Russell’s feet, the lower half of the stocking cart, and the stocking.cart on the other side of Russell are not visible.

Calvin Watkins (“Watkins”) was Best-way’s assistant manager and the manager on duty when Russell fell. In his deposition, Watkins stated that every Tuesday and Friday around 6:00 a.m., a truck delivers shipments of groceries to Bestway. As a result, several stocking carts, are removed from the storage area in the back of the store to free up space in order to operate the forklift and unload the,pallets of groceries from the truck. Watkins stated that it takes about 45 minutes to unload the truck. Since the stocking carts were almost always returned to the back of the store before the store opened at 7:00 a.m., Watkins testified that the store did not have a written policy or procedure in place regarding the stocking carts. When questioned about alternative placement options for the stocking carts in the aisles, Watkins stated:

[W]e could’ve probably rolled the carts on the outside. But with the way the wheels and stuff on the carts, the way the foundation is out there, you know, raggedy and riggidy (sic), you know, so we could have put them outside probably.

Regarding the day of the accident, Watkins stated that the truck driver called on that morning in order to let Watkins know that he was running behind schedule. As a result, the stocking carts remained on the dairy case aisle when the store opened.

In his deposition, Watkins stated that he was walking down Aisle 8 when he heard the accident. He stated that he “saw her on the floor” as “her ^husband was trying to help her up because she seemed like she was in kind of pain because she had tripped over the cart accidently.” As they were leaving, Russell’s husband told him that they were going to the hospital.

Russell filed her petition for damages on July 22, 2011. Thereafter, Bestway filed a motion for summary judgment on January 4, 2012. Bestway argued that Russell could not satisfy the unreasonable risk of harm element of the Merchant Liability Statute, La. R.S. 9:2800.6, because she admitted to seeing the stocking carts before she fell.

At the May 16, 2012 hearing on the motion, the trial court granted the defendant’s summary judgment and dismissed the plaintiffs case. Referencing the three-prong test of the Merchant’s Liability Statute, the trial court stated that:

I examined the photographs that were attached to your exhibit and there was plenty of room between those carts for anybody to make their selection from the dairy case. She was aware of those carts. They were open and obvious and she failed to meet the condition of number one in that statute ... She also would fail to meet condition number three, that is that the merchant failed to exercise reasonable care ... the reason that those carts were present there that day, that it was just a matter of — that it satisfies the requirement of utility, because that was the only place they could be while the groceries were being loaded into the stocking area.

The plaintiff appeals the dismissal of her claim.

Discussion

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends. La. C.C. art. 966 A(2). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to | interrogatories, and admissions, 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. art. 966 B(2). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, 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, action, or defense. 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. art. 966 C(2).

We review the grant of a motion for summary judgment de novo. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/2/11), 78 So.3d 791. A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact 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. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780; Dowdy, supra at 794.

lsThe Louisiana Merchant Liability Statute, La. R.S. 9:2800.6, provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of this cause of action, all of the following:
1. The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
2. The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
3. The merchant failed to exercise reasonable care. In determining care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone to prove failure to exercise reasonable care.
C. Definitions:
1. “Constructive notice” means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

Failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 will prove fatal to the plaintiffs case. Harrison v. Horseshoe Entertainment, 36,294 (La.App.2d Cir. 8/14/02), 823 So.2d 1124; Richardson v. Louisiana-1 Gaming, 10-262 (La.App.5th Cir.12/14/10), 55 So.3d 893. Merchants are required to exercise reasonable care to protect those who enter the store, keep the premises safe from unreasonable risks of harm and warn persons of known dangers. Jones v. Brookshire Grocery Co., 37,117 (La.App.2d Cir.5/14/03), 847 So.2d 43; Turner v. Brookshire Grocery Co., 34,562 (La.App.2d Cir.4/4/01), 785 So.2d 161; Ward v. ITT 16Specialty Risk Services, Inc., 31,990 (La. App.2d Cir.6/16/99), 739 So.2d 251, unit denied, 99-2690 (La.11/24/99), 750 So.2d 987. The mere presence of a defect does not alone elevate that defect to the level of an unreasonably dangerous condition. Milton v. E & M Oil Co., 45,528 (La. App.2d Cir.9/22/10), 47 So.3d 1091, 1095.

It is not disputed that Bestway created this condition by placing the stocking carts down the dairy aisle, thereby satisfying the second element. The trial court held that the plaintiff failed to prove the first and third elements.

In determining whether a condition is unreasonably dangerous, courts have adopted a four-part test. This test requires consideration of:

1) the utility of the complained-of condition
2) the likelihood and magnitude of the harm, which includes the obviousness and apparentness of the condition
3) the cost of preventing the harm and
4) the nature of the plaintiffs activities in terms of its social utility, or whether it is dangerous by nature

Dowdy, supra at 795. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362; Entrevia v. Hood, 427 So.2d 1146 (La.1986); Dowdy, supra.

In Dowdy, supra, in the context of a motion for summary judgment, this court decided the issue of whether an unreasonable risk of harm was present stating that “[t]he court is charged legislatively by this favored procedure to determine the legal significance of the undisputed facts.” Id. at 797-798.

|7As shown by the photos of the accident scene, each of the stocking carts lined up along the dairy case section of the store is approximately four to five feet in length. The metal platform where merchandise is stacked for transporting appears to be approximately eight inches off the floor and supported by the four small wheels of the cart. At one end of the stocking cart is a tall metal stand, perpendicular to its platform with an extended bar for pushing the cart. Clearly, a single cart empty of any merchandise and located along a store aisle would be an obstacle that would be obvious to a shopper. Unless such cart was located in a place where the shopper might unexpectedly encounter it and trip, one obvious stocking cart does not present an unreasonable risk of harm. Its utility for stocking merchandise is a necessity, and its common use and obviousness to a shopper make any risk slight.

The alleged hazard in this case, however, goes beyond the risk associated with one stocking cart. There were two carts side-by-side and Russell stepped between those carts to access the dairy case. That area between the carts was estimated at between three and four feet, which was a somewhat narrow area in which to maneuver. Turning to leave that area with her cream cheese product in hand, Russell tripped on a cart.

The utility of the complained-of condition relates to Bestway’s need to have the stocking carts on the aisles of the store from time to time when store customers are present. The utility and need may be diminished somewhat in this ease as the situation arose from an unusual event involving the late arrival of the delivery truck. The “cost of preventing harm” can also labe viewed as basically inconsequential to the store as the carts could have been placed in a different manner by Best-way around the store or even outside the building.

An assessment of the likelihood and magnitude of harm involving the obstruction caused by these multiple stocking carts shows that harm to customers would be unlikely. The carts are clearly large and obvious. A customer might be inconvenienced by the cart placement and might need a cart to be moved to obtain a grocery item. However, Russell did not testify that she was blocked from reaching the cream cheese. After selecting her item, she simply tripped on the stocking cart as she turned to leave the dairy case. The time indicator from the still frames of the videotape of the accident shows that her maneuver in between the two carts occurred in a matter of seconds, and she tripped inadvertently on one of the carts.

Finally, the nature of plaintiffs activity was that of a normal shopper. She did not do anything risky in choosing to walk into the space between the carts.

From this review, we find that the facts are undisputed as revealed by the actual event shown on the still frames from the videotape. Even though there were multiple stocking carts involved, we find this situation so open and obvious that Russell was able to observe the carts and easily avoid any risk of harm. Generally, there are different display arrangements and other observable obstacles in the aisles of a grocery store. While a shopper might trip on such obstacles, including this arrangement of multiple carts, we do not find that this situation presents an unreasonable risk of harm making the |9store responsible in this instance. Accordingly, we affirm the trial court’s grant of summary judgment.

Conclusion

For the foregoing reasons, the trial court’s grant of summary judgment is affirmed. Costs of this appeal are assessed to appellant.

AFFIRMED.