author: GUIRDY, J. McClendon, J.,

text:
    Hermina LAVERGNE and Darrell Lavergne v. BJ’S RESTAURANTS, INC.
    NUMBER 2016 CA 0090
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 15, 2016

      H. Glenn Marcantel, Opelousas, LA, and, C. Glenn Westmoreland, Livingston, LA, Counsel for, Plaintiffs/Appellees, Her-mina & Darrell, Lavergne
    Andrew P. Sellers, Baton Rouge, LA, Counsel for, Defendant/Appellee, BJ’s Restaurants, Inc.
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.guidry, j.
   GUIRDY, J.

|2A restaurant appeals a judgment in favor of a patron finding it liable for injuries sustained by the patron when she fell down two steps in the restaurant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 2, 2010, Hermina Lavergne accompanied her daughter and granddaughter on a shopping trip to the Mall of Louisiana in Baton Rouge, Prior to going into the mall to shop, the group decided to get something to eat at BJ’s Restaurant. On entering the restaurant, the group were told that there would be a delay before they could be seated at a dining table, so they sat in the lobby to wait. When a table became available, a host approached the group to escort them to their table. Mrs. Lavergne’s daughter and granddaughter immediately followed the host, but Mrs. Lavergne lagged behind.

The nearest entrance into the dining area from the lobby required descending two steps from the lobby into the dining area. The host escorting Mrs. Lavergne’s daughter and granddaughter advised them to “watch” their step. Mrs. Lavergne, who happened to be reading something as she walked several feet behind the others, did not hear the warning and fell down the steps into the dining area. As a result of the fall, Mrs. Lavergne severely injured her right foot. Mrs. Lavergne was sixty-five years old at the time of the accident.

On December 10, 2010, Mrs. Lavergne and her husband, Darrell Lavergne, filed a petition for damages against BJ’s Restaurants, Inc., alleging that the failure to provide adequate lighting and warnings of the steps leading into the dining area caused Mrs. Lavergne’s injury. Consequently, they sought damages for Mrs. Lavergne’s medical expenses and pain and suffering and for Mr. Lavergne’s loss of consortium, BJ’s denied liability and the matter proceeded to a bench trial. Following the trial on the merits, the trial court found that the condition of the Rsteps presented an unreasonable risk of harm, but that Mrs. Lavergne also failed to exercise reasonable care in walking to the table. Therefore, the court found BJ’s to be seventy percent at fault and Mrs. Lavergne to be thirty percent at fault and awarded damages in the amount of $393,386.61. The trial court signed a written judgment to that effect on October 14, 2015, which judgment BJ’s suspensively appeals herein.

ISSUES PRESENTED FOR REVIEW

In this appeal, BJ’s presents two issues for our review:

1. Did the trial court misinterpret the evidence in finding negligence on the part of the restaurant?
2. Did the [tjrial [cjourt properly apply the law on premises liability?

APPLICABLE LAW

The liability of a merchant for an injury sustained on its premises is determined according to La. R.S. 9:2800.6, which 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 his 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 reasonable care, the absence of a written or verbal uniform cleanup or Rsafety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

Thus, merchants are required to exercise reasonable care to protect those who enter the premises, and this duty extends to keeping the premises safe from unreasonable risks of harm and warning persons of known dangers. Moore v. Murphy Oil USA, Inc., 15-0096, p. 11 (LaApp. 1 Cir. 12/23/15), 186 So.3d 135, 145, writ denied, 16-0444 (La. 5/20/16), 191 So.3d 1066.

The question of whether or not a condition presents an unreasonable risk of harm is subject to review under the manifest error standard. Thus, the trial court’s determination should be upheld if a review of the entirety of the record reveals the determination has a reasonable factual basis. Where there are two permissible views of the evidence, the factfinder’s choice cannot be manifestly erroneous or clearly wrong. Moore, 15-0096 at p. 19, 186 So.3d at 149-50.

DISCUSSION

In its assignments of error, BJ’s argues that the trial court clearly erred in finding that the steps in the restaurant presented an unreasonable risk of harm and in failing to find that the evidence presented at trial established that Mrs. Lavergne’s accident was solely caused by her inattentiveness. BJ’s argues that the evidence presented at trial established that the non-defective steps did not present an unreasonable risk of harm because the steps were open and obvious.

| fiUnder Louisiana law, a defendant generally does not have a duty to protect against that which is obvious and apparent. In order for an alleged hazard to be considered obvious and apparent, the hazard should be one that is open and obvious to everyone who may potentially encounter it. Bufkin v. Felipe’s Louisiana, LLC, 14-0288, p. 7 (La, 10/15/14), 171 So.3d 851, 856.

At trial, the parties stipulated that BJ’s “trains its hosts and hostesses to tell guests to watch their step or .. .look at the steps” as the patron is approaching the steps in the restaurant. The general manager of the BJ’s restaurant at issue, Manni Ukutegbe, testified that the warning given by hosts and hostesses is a precaution to keep customers from falling on the steps. The plaintiffs’ daughter, Nicole Deshotel, stated that prior to receiving the warning from the host on the date of the accident, she did not notice the steps. As she explained, “[w]hen he said that, it caught my attention because I didn’t notice it so I made sure that my daughter wasn’t going to trip and fall.” Similarly, Mrs. Lavergne testified that she did not see the step down at any time before she fell, stating “[i]t was a total surprise.”

The plaintiffs’ expert witness, Mitchell Wood, who was accepted by the trial court as an expert in enforcement design and architecture, testified that it is a good policy for the maitre d’ or greeter to inform patrons to watch their step as they direct patrons toward the dining area, because “there is an elevation change and ... one may not expect it.” As Mr. Wood explained:

[W]e’re in South Louisiana. Everything’s flat. ... I wouldn’t say it’s a common thing in restaurants, but it’s — it’s not common at all to have a — to have an elevation change at an entry, ... if someone doesn’t expect it. And we— here, in South Louisiana, it’s very unexpected, very — very uncommon. Um, so what you’re trying to do is make sure you’re protecting the public, warning them, telling them that, hey, be — watch your step, as you step down, use the handrails, so they can descend in — in a safe manner, because, again, we talked about the fact that you’re distracted. You actually are looking out over the restaurant itself and you may not be paying attention or you’re not — your— your eyesight or vision is not directed at your feet.

|fiMr. Wood also discussed a section found in the 2006 and 2012 editions of the International Building Code, noting that the section states “it is not recommended to use short stairways in a passageway since such steps may be overlooked by occupants and present a severe tripping hazard in daily use. ... They are to be avoided wherever possible.” Hence, Mr. Wood opined that the building codes do not allow the construction of “a two-step step down in this manner because ... in their research and understanding, there’s just too many instances of accidents and injuries.” Mr. Wood further opined that if a person is unfamiliar with the restaurant, the person would be at a detriment because he or she would not be aware of the elevation change, and when coming in from either bright sunlight or an outside environment, it can be difficult for someone, especially the elderly, to recognize that there is an elevation change. As he stated, “it’s an unsafe design to have ... a change of elevation so close or near the entry.”

The foregoing evidence supports the conclusion that the existence of the steps in the restaurant is not necessarily a condition that is readily apparent to all. As the steps cannot be said to be readily apparent to all, they cannot be said to be an open and obvious condition. See Moore, 15-0096 at p. 18, 186 So.3d at 149 (wherein this court found that although the condition in that case, a water display pallet, was large and obvious, “the protruding black corner of the water display pallet may have led to an unreasonably dangerous condition that was not readily apparent to all.”). Thus, BJ’s cannot be held to be relieved of any duty to protect against the condition presented, to the extent the steps in the restaurant are found to be hazardous or unreasonably dangerous. See Bufkin, 14-0288 at p. 7, 171 So.3d at 856.

In its reasons for judgment, the trial court observed that the plaintiffs were not claiming that the steps were defective in them construction. Instead, the court 17found that the plaintiffs were alleging that the use of the steps in the restaurant caused a change in elevation, which in turn created an unreasonably dangerous condition of which BJ’s failed to warn Mrs. Lavergne. The court held that “a hazardous or dangerous condition is not dependent upon a code violation” and then expressly found that the evidence submitted at trial established by a preponderance of the evidence that the condition of the steps presented an unreasonable risk of harm. The court, stated that the totality of the evidence presented at trial added up to the creation of an unreasonably dangerous condition, which evidence was comprised of Mrs. Lavergne being given a menu that was not retrieved from her as she began walking to the table; the host not verbally warning Mrs. Lavergne about the steps; the circumstances surrounding the location of the steps; the ambience of the restaurant; and the lack of any warnings to use caution while traversing the steps, other than the verbal warnings from hosts/hostesses.

To determine whether a condition is unreasonably dangerous, a risk-utility balancing test is generally employed, wherein the gravity and the risk of harm is balanced against the individual and societal utility and the cost and feasibility of repair using the following four pertinent factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and ap-parentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of social utility or whether the activities were dangerous, by nature. Bufkin, 14-0288 at p. 6, 171 So.3d at 856.

Regarding the first factor in the risk-utility test, the only evidence presented at trial regarding this factor came from the plaintiffs’ expert witness, Mr. Wood. On questioning, .he. opined as an architect and designer that the reason for a “multilevel restaurant” would be to oversee the entire restaurant for the availability of tables, but stated that the only use of the steps , in BJ's restaurant was 18predominantIy aesthetic. He testified that he did not think the steps had any social utility whatsoever.

Under the second factor, as previously discussed, not only was there evidence presented regarding whether the steps were obvious and apparent, but also as previously discussed, the evidence presented at trial indicated a significant likelihood that the steps could cause people to fall, due not only to the existence of the steps in the pathway leading directly from the lobby to the dining area of the restaurant, but also due to the low-level lighting used in the restaurant and the overall decor of the restaurant.

Concerning the third factor, Mr. Wood testified regarding several things he would suggest to correct the deficiency in design presented by the interior steps, with the primary recommendation being to change the steps to a ramp. While Mr. Wood did not testify regarding the costs of making such a change, he did state that “it wouldn’t be difficult to do.” He also suggested changing the lighting level in the restaurant and putting up warning signs to notify customers to “watch your step” as other measures that could be taken to remedy the hazard presented by the steps.

Finally, as to the last factor of the risk-utility balancing test, it is undisputed that at the time of the accident, Mrs. Lavergne was reading something and was not paying attention to where she was walking. Mrs. Lavergne agreed with knowing that a person is supposed to pay attention to where she is going when she is walking and that it is not a good idea to read while walking, particularly in an unfamiliar environment. However, Mrs. Lavergne clarified that had there been a sign warning about the steps, she would have seen it because she was not reading 19the entire time she was waiting to be seated. She also testified that although she was not certain that she was reading a menu when she fell, she stated that it had to be a menu because she did not read anything else nor have any other reading material with her.

Considering the foregoing, we cannot say the trial court’s determination that the steps in the restaurant presented an unreasonable risk of harm was clearly wrong. Our deference to the trial court’s determination in this case is particularly underscored by the faet that BJ’s, by its own policy and procedure of verbally warning patrons of the steps, recognized the hazard presented by the steps, which was reasonably foreseeable, as required by La. R.S. 9:2800.6(B)(1).

It is undisputed that BJ’s voluntarily instituted a policy of training its hosts and hostesses to warn patrons of the interior steps located within the restaurant, and as acknowledged by Mr. Ukutegbe, the general manager of the restaurant, this is done for the safety of restaurant patrons. Mr. Ukutegbe testified that when there is a party of guests, the host or hostess is not required to stand and individually warn every single person in the group, but the host or hostess should speak loudly enough to ensure that all the members of the group hear the warning.

Mrs. Lavergne testified that she saw the host approach her daughter and her granddaughter and saw them walk to a table, but she was not with them. She explained that “[tjhere was a line because they were busy.” She further explained that when her daughter got to a certain point, “the gentleman came and he was going to bring them to the table. And, um, I told them to just go ahead because I was slow and I was behind them, ... But I didn’t have anybody to come help me.” Mrs. Lavergne testified that there was nobody to say “watch your step” or to assist her.

Mrs. Deshotel testified that she informed the restaurant staff that they were a party of three when they were told there would be a wait for a table. In viewing | ipthe video of the incident, we observe that the host appears to turn around twice and speak while leading the group, but Mrs. Lavergne does not appear in his immediate proximity at either time, and she testified that she did not hear the verbal warning given by the host. And although conflicting evidence was presented as to whether the item Mrs. Lavergne was reading was a restaurant menu, in light of Mrs. Lavergne’s and Mrs. Deshotel’s testimony that they were given menus to read while waiting and that Mrs. Lavergne did not have any other reading material with her that day, we cannot say the trial court’s factual determination that the item Mrs. Lavergne was reading was, in fact, a menu to be manifestly erroneous.

Under the foregoing circumstances, we likewise can find no error in the trial court’s conclusion that BJ’s failed to exercise reasonable care in this case. The trial court evidently found, and the record supports the finding, that the steps constituted an unreasonable risk of harm and that the verbal warning given by the host in this case was insufficient under the - circumstances and thus constituted a failure to exercise reasonable care that increased the risk of harm to Mrs. Lavergne. Accordingly, we find the judgment of the trial court should be affirmed.

CONCLUSION

Finding that the law and evidence. support the trial court’s determination of BJ’s liability for the injury sustained by Mrs. Lavergne, we affirm. All costs of this appeal are thus cast to the appellant, BJ’s Restaurants, Inc.

AFFIRMED.

McClendon, J.,

concurring.

JjBased on the totality of the: circumstances presented, I concur with the majority.

      . This total award is comprised of $270,000.00 in general damages and $108,386.61 in special damages for Mrs. Lav-ergne and $15,000.00 for loss of consortium for Mr. Lavergne.

      . The BJ’s restaurant at issue was constructed in 2008.

      . The measured lighting level for the restaurant was 5.6 foot-candles, and the minimum lighting level required under the 2006 International Building Code was not less than one foot-candle. Although he acknowledged that the restaurant’s lighting was not in violation of any codes, insofar that the level was greater than the minimum of one foot-candle required, Mr. Wood still opined that the restaurant's low lighting was a problem and that proper lighting would require a minimum of 7 ½ to 15 foot-candles reading.

      . As the steps at issue are a part of the restaurant’s construction, the element of notice under La. R.S. 9:2800.6(B)(2) is not at issue,


source: Caselaw Access Project

author: HOLDRIDGE, J.

license: Public Domain

text:
    Anita P. MELANCON v. PERKINS ROWE ASSOCIATES, LLC & Aspen Specialty Insurance Company
    2016 CA 0219
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 14, 2016

      Steven E. Adams, Baton Rouge, LA, Attorney for Plaintiff/Appellant, Anita M. Melancon
    Marc D. Moroux, Lafayette, LA, Attorneys for DefendanVAppellee, Aspen Specialty Insurance Company
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   HOLDRIDGE, J.

| gPlaintiff-appellant, Anita Melancon (the plaintiff), appeals a summary judgment granted in favor of defendant-appellee, Aspen Specialty Insurance Company (the defendant), that dismissed the plaintiffs claims with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On July 18, 2012, the plaintiff was walking on the sidewalk at Perkins Rowe in Baton Rouge, Louisiana, when she tripped, causing her to fall and sustain injuries. At the time of the incident, the sidewalk passed over a driveway ramp that cut into the concrete on which the walkway sat to produce a curb of varying height along the length of the ramp. The marked sidewalk remained level as it crossed the ramp, but pedestrians walking outside the marked sidewalk were obliged to step down onto the ramp and then step up onto the sidewalk in order to traverse the driveway. The plaintiff tripped as she stepped from the ramp back up to the sidewalk.

On July 22, 2013, the plaintiff filed a petition for damages against Perkins Rowe Associates, LLC (Perkins Rowe), and the defendant, its insurer, in connection with the tripping incident. The defendant filed a motion for summary judgment on June 9, 2015.

The defendant’s memorandum in support of its motion for summary judgment asserted that the sidewalk curb presented an open and obvious risk for pedestrians; therefore, Perkins Rowe had no duty to protect the plaintiff from any danger .that the curb posed. In support- of this assertion, the defendant attached the plaintiffs deposition testimony, four photographs of the incident scene, and an affidavit from Brian McCullough, the former attorney for entities that previously | sowned, managed, and/or constructed the Perkins Rowe premises. In his affidavit, Mr. McCullough stated that he was familiar with the Perkins Rowe premises from his prior work and from his regular visits to the area, and that the photographs accurately represented the state of the premises at the time of the incident.

The plaintiffs memorandum in opposition to the motion for summary judgment disputed the open and obvious nature of the sidewalk curb, asserted that Mr. McCullough’s affidavit should be stricken as improper expert testimony, and called for a delay in proceedings to allow further discovery. As evidence that the sidewalk curb presented an unreasonable risk to pedestrians, the plaintiff identified- subsequent remedial measures such as smoothing the sidewalk curb and painting .it a bright orange color.

The trial court ultimately granted the motion for summary judgment and dismissed the defendant from the suit. From this judgment, the plaintiff appealed, asserting the following two assignments of error;

1. Whether the trial court committed error by admitting into evidence the affidavit of Brian McCullough.
2. Whether the trial court committed error by granting Defendant’s Motion for Summary Judgment in view of the unresolved issues of material fact.

DISCUSSION

Evidentiary Issues

|¿The plaintiff argues .that Mr. McCullough’s affidavit presents him as an expert rather than as a fact witness and that, therefore, the probative value of the affidavit is outweighed by its prejudicial impact.

After' reviewing Mr. McCullough’s affidavit, we have concluded that he is not presenting himself as an expert or offering an expert opinion on sidewalk construction, slip and fall accidents, or any other matter. The statements regarding Mr, McCullough’s background speak to his personal awareness of the state of the premises at the time of the accident. A witness may not testify to matters over which he lacks personal knowledge; and an affiant is required to “show affirmatively that the affi-ant is competent to testify to the matters stated” in the affidavit. La. C.C.P. art. 967. The remainder of Mr. McCullough’s affidavit addresses the veracity of photographs separately admitted into evidence, of which he also had personal knowledge. After reviewing the record, we do not believe that the trial court abused its discretion in allowing the affidavit of Mr. McCullough into evidence.

Summary Judgment

The plaintiff contends that the motion for summary judgment should not have been granted because she was not afforded adequate opportunity for discovery, which she asserts was delayed due to ongoing settlement negotiations with the defendant. The trial court determined that the plaintiff was afforded ample time to conduct discovery.

Louisiana Code of Civil Procedure article 967(C) provides:

If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify |Bhis opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

The decision to proceed with summary judgment or to delay the matter for additional discovery is within the trial court’s discretion and should only be reversed upon a showing of an abuse of discretion. McCastle-Getwood v. Prof'l Cleaning Control, 2014-0993 (La.App. 1 Cir. 1/29/15), 170 So.3d 218, 223. The law only requires that the parties have a fair opportunity to carry out discovery and to present their claims. Id. The plaintiff in this ease had two years to conduct discovery from the time she filed suit until the motion for summary judgment was filed. In Coburn v. Dixon, 2015-1095 (La.App. 3 Cir. 4/27/16), 190 So.3d 816, writ denied, 2016-1022 (La. 9/16/16), 206 So.3d 211, the Third Circuit found the trial court did not abuse its discretion in hearing a motion for summary judgment fifteen months after suit was filed. See also Justiss Oil Co., Inc. v. Monroe Air Center, L.L.C., 45,356 (La. App. 2 Cir. 8/11/10), 46 So.3d 725, 728 (holding the trial court did not abuse its discretion in hearing a motion for summary judgment that had been filed almost two years after suit was filed). We find no abuse of the trial court’s discretion in allowing the hearing for summary judgment to proceed.

The plaintiff next contends that the court erred in finding that the motion for summary judgment should be granted. We review the granting or denial of a motion for summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Temple v. Morgan, 2015-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76. A motion for summary judgment should be granted only if the pleadings, depositions, answers to Ininterrogatories, and admissions, together with affidavits admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2):

On a motion for summary judgment, the burden of proof is on the mover. La. C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial, the mover’s burden does not require that all essential elements of the adverse party’s claim be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C)(2).

The plaintiffs petition asserts that the defendant and its insured, the premises owner, are liable for the plaintiffs injuries because of its negligence. A plaintiff asserting a claim of negligence must prove the five elements of the duty-risk analysis:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages.

Bufkin v. Felipe’s La., LLC, 2014-0288 (La. 10/15/14), 171 So.3d 851, 855. When evaluating the duty that a property owner owes relative to a sidewalk condition, the court must determine “whether the sidewalk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence.” Bufkin, 171 So.3d at 856. The Louisiana Supreme Court established a risk-utility balancing test to assist courts in making this determination: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including 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 social utility or whether the activities were dangerous by nature. Id

The second prong focuses on whether the allegedly dangerous or defective condition is “obvious and apparent.” Id. Under Louisiana law, a defendant generally does not have a duty to protect against that which is obvious and apparent. Id. A defect is “obvious and apparent” when it is one that should be open and obvious to everyone who may potentially encounter it. Id. A defect is not disqualified from the open and obvious label merely because a particular plaintiff was not aware of the defect at the time of the injury; the test focuses on the global knowledge of persons expected to encounter the defect or hazard. Temple, 196 So.3d at 77.

The Louisiana Supreme Court has previously said that “one cannot expect paved surfaces of streets, sidewalks, and parking lots to be free of all deviations and defects.” Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362, 365. A pedestrian has a duty to see that which should be seen and is bound to observe his course to see if his pathway is clear. Bufkin, 171 So.3d at 855. It is |snot the duty of the party having garde of the same to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs. See Reed, 708 So.2d at 363, 366 (holding that a difference in height of one-fourth to one inch between sidewalk panels did not present an unreasonable risk of harm); Boyle v. Bd. of Sup’rs, La. State Univ., 96-1158 (La. 1/14/97), 685 So.2d 1080, 1084 (holding that a difference in height of one-half to one inch between sidewalk panels did not present an unreasonable risk of harm); Temple, 196 So.3d at 81 (holding that cracks in sidewalk were an open and obvious defect); Dickson v. City of Shreveport, 47,268 (La. App. 2 Cir. 8/8/12), 104 So.3d 9, 15, writ denied, 2012-2284 (La. 11/30/12), 103 So.3d 375 (holding that cracks in sidewalk were an open and obvious defect).

In the present case, it is undisputed that the plaintiff tripped on the sidewalk curb created by a ramp that crossed over the sidewalk at the Perkins Rowe premises. The pictures submitted into evidence show a sidewalk pathway that avoids the height difference of the ramp and walkway entirely, and there is no remarkable feature of the sidewalk curb that would make it difficult for a pedestrian to see the height difference on either side of the pathway. The plaintiff’s deposition testimony confirms that there was no slippery or wet substance on the walkway and that the area was not under construction or in a state of disrepair. There is no evidence indicating that the plaintiff could not have observed the state of the walkway from an ordinary inspection of the path before her. This evidence is enough to shift the burden to the plaintiff to show that the defect was not open and obvious. See La. C.C.P. art. 966(C)(2).

The affidavits of the plaintiffs husband and daughter state that they were told that accidents had happened in that same location before the plaintiffs accident. The defendant raised a hearsay objection at the summary judgment shearing to these statements in the affidavits. Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with La. C.C.P. art. 966(F)(2). Louisiana Code of Civil Procedure article 966(F)(3) states, in pertinent part, that objections to evidence in opposition to a motion for summary judgment may be raised in a written motion to strike or a memorandum stating the specific grounds therefor. In this case, the defendant did not file a motion to strike or raise the objection in its reply memorandum. The trial court therefore properly ruled that the affidavits were deemed admitted in accordance with La. C.C.P. art. 966(F)(2). Even though the affidavits were ruled admissible, the trial court had the option to accept or reject the hearsay statements in the affidavits. While the affidavits were properly admitted, the court could properly not consider statements contained therein that were not based upon the personal knowledge of the affi-ant.

In considering the hearsay evidence in this court’s de novo review, we note that there is no evidence to indicate that these accidents were particularly frequent or caused by the same sidewalk curb where the plaintiff tripped. Therefore, the evidence is insufficient to defeat the motion for summary judgment. The mere fact that the affidavits of the plaintiffs husband and daughter allege that some unknown number of other pedestrians have also tripped in the same area as the plaintiff is insufficient to show that the risk posed by the ramp is not open and obvious to pedestrians expected to encounter the ramp. Thus, the plaintiff failed to carry her burden of proving that the alleged defective condition was not open and obvious to all.

| ^Accordingly, we find there is no genuine issue of material fact and that reasonable minds must inevitably conclude, from the evidence before us, that the sidewalk curb on which the plaintiff tripped presented an open and obvious risk. The defendant has shown that the plaintiff will not be able to meet the essential duty element of the duty-risk analysis. Therefore, the trial court did not err in granting the defendant’s motion for summary judgment and the plaintiffs assignment of error has no merit.

CONCLUSION

For all of the foregoing reasons, we affirm the trial court’s grant of the motion for summary judgment, which dismissed all claims against defendant-appellee, Aspen Specialty Insurance Company, with prejudice. Costs of this appeal are assessed to the plaintiff-appellant, Anita Me-lancon.

AFFIRMED.

      . The plaintiff did not request Service on Perkins Rowe; therefore, her claims against this defendant are not subject to this appeal.

        . Although the plaintiff did not explicitly designate the issue as an error of the trial court, the plaintiff asserts in her appellate brief that the deposition testimony regarding subsequent remedial measures at the Perkins Rowe premises should have been considered in the hearing for summary judgment, After considering the record and the arguments submitted by the plaintiff, we hold that the trial court did not abuse its discretion in refusing to consider this evidence at the hearing for summary judgment, The defendant objected to the - testimony in its reply brief in support of the summary judgment and the trial court was correct in not considering the evidence. See La. C.C.P. art. 966(F)(2). All citations to La, C.C.P, art. 966 specifically refer to that article as it existed prior to its amendment by 2015 La. Acts, No, 422, effective January 1, 2016. Motions and appeals pending prior to the effective date must still be adjudicated under the previous version of article 966. See 2015 La. Acts, No. 422.

      . We note that regardless of whether parts of Mr. McCullough's affidavit were not admissible, there was ample testimony regarding the nature of the sidewalk curb on which the plaintiff tripped. It is doubtful that the determination of this evidentiary issue would impact the case before the court; we only address the matter to give full consideration to the plaintiff’s assignments of error.

      . We need not address the issue of whether evidence of settlement negotiations was admissible under La. Code Evid. art. 408 to explain the plaintiff's delay in conducting discovery. Because the trial court did not abuse its discretion in finding the plaintiff had a fair opportunity to conduct discovery in the almost two years between filing suit and the filing of the motion for summary judgment, the admissibility of the explanation for her delay is irrelevant.

      . See footnote 2.

      . The plaintiff has also asserted a theory of strict liability under La. C.C. arts. 2317 and 2317.1, but the 1996 amendment enacting article 2317.1 "abolished the concept of strict liability governed by prior interpretation of La. C.C. art. 2317.” Jackson v. Brumfield, 2009-2142 (La.App. 1 Cir. 6/11/10), 40 So.3d 1242, 1243. Under the current law, claims made under article 2317 are predicated on a finding of negligence. Id.

      .In this case, the burden was on the plaintiff to submit proof to establish that the design of the sidewalk and the curbing was defective. From our review of the record, the plaintiff failed to present any proof as to a defect in the sidewalk curbing. Since the trial court rendered its decision on the issue of open and obvious, for the sole purposes of this appeal, we will assume, without deciding, that the design is defective and will focus on the issue of whether the alleged defect is open and obvious.

      . Cf. Davis v. Elmer, 2014-1298 (La.App. 1 Cir. 3/12/15), 166 So.3d 1082, 1086-87, wherein this court granted a motion to strike a letter from the appellate record where "the trial court ruled that it would not consider the contents of the letter, apparently finding the letter to be hearsay and inadmissible on summary judgment. ”


author: McClendon, j.

text:
    Kerry KIRBY & Lori Kirby, Individually & on Behalf of Their Minor Children, A.C. Kirby, Heidi Mayeaux, Kerry Kirby, Jr. & Hannah Kirby v. Mike ASHFORD, Exide Technologies Inc., & ABC Manufacturing Company
    2015 CA 1852
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 22, 2016

      Julie A. Scheib, Patrick D. Magee, Lafayette, Louisiana, Counsel for Defendant/Appellant, XL Insurance America, Inc., formerly known as Winterthur, International America Insurance, Company
    Céleste D. Elliott, Tina L. Kappen, New Orleans, Louisiana, Counsel for Third-Party Defendant/Appellee, Century Surety Company
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

lain this appeal, a defendant insurer appeals a judgment that granted summary judgment and sustained an exception of no right of action filed by a third-party defendant insurer. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

On September 15, 2000, Ducote Wrecking Company, L.L.C. (Ducote) executed a contract with Exide Technologies, Inc. (Exide) to provide maintenance services at Exide’s facility in East Baton Rouge Parish. The contract included a Hold Harmless and Indemnity Agreement, wherein Ducote agreed to defend and indemnify Exide from any act or omission, including negligence, on the part of Exide or Exide’s employees. On December 13, 2000, Kerry Kirby, an employee of Ducote, was performing maintenance services at Exide’s East Baton Rouge Parish facility when he was allegedly injured. Thereafter, on December 13, 2001, Mr. Kirby and Lori Kirby, individually and on behalf of their minor 'children, A.C. Kirby, Heidi Mayeaux, Kerry Kirby, Jr., and Hannah Kirby (the Kirbys), filed a Petition for Damages against Exide and Exide’s unnamed liability insurer. On April 4, 2002, Exide requested in writing that Ducote and Century Surety Company (Century), Ducote’s commercial general liability (CGL) insurer, provide a defense and hold it harmless from the liabilities asserted by the Kirbys. On April 22, 2002, Exide filed a notice of bankruptcy in the Kirby lawsuit.

Thereafter, on November 25, 2009, the Kirbys filed a Second Supplemental and Amending Petition, naming XL Insurance America, Inc., formerly known as Wintert-hur International America Insurance Company (XL), as Exide’s liability insurer at the time of Mr. Kirby’s injuries. On March 24, 2011, XL sent a letter requesting that Century undertake the defense of and agree to indemnify Exide and XL from and against all claims, causes, and expenses incurred in defense of the Kirbys’ lawsuit. On May 2, 2011, Century denied the request. On June 10, 2013, Exide filed another voluntary | ^petition for relief under the Bankruptcy Code, and the notice of automatic stay was filed in the Kirby lawsuit on January 13, 2014.

Subsequently, on March 13, 2014, XL filed a Third Party Demand naming Du-cote and Century as third-party defendants and asserting that it was owed a defense and indemnity in this matter. XL also requested sanctions, penalties, costs and attorney fees, maintaining that Century’s denial for defense and indemnity was arbitrary, capricious, and without probable cause.

In response, Century filed a Motion for Summary Judgment and Exception of No Right of Action on December 16, 2014, asserting that Century’s insurance policy contained an Employer’s Liability Exclusion that excluded coverage for injuries to Ducote’s employees regardless of the source of Ducote’s liability. Thus, it asserted, regardless of whether Ducote was contractually hable to defend or indemnify Exide for damages arising out of Mr. Kirby’s injuries, the Employer’s Liability Exclusion applied to bar coverage. Alternatively, Century contended that it had no obligation to defend or indemnify Exide as an additional insured since Exide was not an additional insured under Century’s policy, and, as a matter of law, Century had no obligation to Ducote’s contractual indemni-tees because Century’s obligations were solely to its insureds. Century also alleged that XL, as Exide’s insurer, had no right to pursue a claim against Century for contractual indemnification under the Direct Action Statute. Lastly, Century requested that XL’s bad faith claims be dismissed.

XL filed an opposition again asserting that it was subrogated to the rights of Exide and that it had a right of action against Century in that capacity. It also claimed that the Employer’s Liability Exclusion contained in the Century policy did not preclude coverage for its claims against Century.

Following a hearing on March 30, 2015, the trial court took the matter under advisement and, on April 13, 2015, made a ruling in open court, granting Century’s motion for summary judgment and sustaining the exception of no right of action. The trial court signed a judgment to that effect on April 29, 2015, ordering that the claims | ¿asserted by XL, in its capacity as alleged subrogee to Exide, against Century be dismissed with prejudice. Century’s motion for new trial was denied by judgment signed on August 20, 2015, and XL insurance appealed.

In its appeal, XL assigns the following as error:

1. The trial court erred in granting Century’s Exception of No Right of Action. XL has a right of action against Century even though the Direct Action Statute is not the source of XL’s right of action against Century.

2. The trial court erred in granting Century’s Motion for Summary Judgment. The Employer’s Liability Exclusion contained in Century’s policy does not preclude coverage for XL’s claims against Century for the defense and indemnity of XL’s bank-rapt insured, Exide, by Century’s insured, Ducote. Century is bound by the terms of its policy for the liability of Ducote’s contractual indemnitees, and XL’s claims of bad faith against Century are well-founded.

DISCUSSION

Initially, we address the rale to show cause order issued by this Court, ex pro-prio motu, on December 15, 2015, wherein we stated that upon examining the record in this matter, the April 29, 2015 judgment appeared to be a partial judgment without the required designation of finality required by LSA-C.C.P. art. 1915. We ordered the parties to show cause by briefs why the appeal should or should not be dismissed. The parties responded, and the rale to show cause was referred to the panel to which the appeal was assigned.

Both XL and Century assert that the trial court judgment dismissed all pending claims against Century and therefore the judgment is immediately appealable under LSA-C.C.P. art. 1915A. Citing Motorola, Inc. v. Associated Indem. Corp., 02-0716 (La.App. 1 Cir. 4/30/03), 867 So.2d 715, 721 (en banc), and Motorola, Inc. v. Associated Indem. Co., 02-1351 (La.App. 1 Cir. 10/22/03), 867 So.2d 723 (en banc), XL and Century each contend that the judgment requires no further designation as it dismisses Century in its entirety. Upon our review of the record, we agree and find the judgment is a partial final judgment under LSA-C.C.P. art. 1915A. There being no need for certification under Article 1915B, we maintain the appeal.

| ¿Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B(2); Tomaso v. Home Depot, U.S.A., Inc., 14-1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 681. The burden of proof remains with the movant. LSA-C.C.P. art. 966C(2). However, if the mov-ant 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 that he negate all essential elements of the adverse party’s claim, action, or defense. Instead, the movant must 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, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If he fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. Id.

In determining whether summary judgment is appropriate, an appellate court reviews a trial court’s grant of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Janney v. Pearce, 09-2103 (La.App, 1 Cir. 5/7/10), 40 So.3d 285, 289, writ denied, 10-1356 (La. 9/24/10), 45 So.3d 1078.

Interpretation of an insurance policy usually involves a legal question that can be properly resolved in the framework of a motion for summary judgment. Bonin v. Westport Ins. Corp., 05-0886 (La. 5/17/06), 930 So.2d 906, 910. An insurance policy is a contract between the parties and should be construed by using the general | firules of interpretation of contracts set forth in the Louisiana Civil Code. LeBlanc v. Aysenne, 05-0297 (La. 1/19/06), 921 So.2d 85, 89.

The Civil Code provides that interpretation of a contract is the determination of the common intent of the parties and when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. arts. 2045 and 2046. Therefore, in interpreting an insurance policy, the words of the policy should be given their generally prevailing meaning, and words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. LSA-C.C. arts. 2047 and 2048. Each provision of the policy must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole, and it must be interpreted to cover only those things it appears the parties intended to include. LSA-C.C. arts. 2050 and 2051; Ridenour ex rel. Ridenour v. Reed, 05-1849 (La.App. 1 Cir. 9/20/06), 944 So.2d 584, 586. Thus, when the meaning of the words is clear, the court should look no further in determining the intent of the parties. P.D. v. S.W.L., 07-2534 (La.App. 1 Cir. 7/21/08), 993 So.2d 240, 243, writ denied, 08-2770 (La. 2/13/09), 999 So.2d 1146. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Ambiguity is to be resolved by construing the policy as a whole. Carrier v. Reliance Ins. Co., 99-2573 (La. 4/11/00), 759 So.2d 37, 43.

Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. See LSA-C.C. art. 2056. Moreover, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Cadwallader v. Allstate Ins. Co., 02-1637 (La. 6/27/03), 848 So.2d 577, 580. However, this strict construction principle applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations. Thus, for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Cadwallader, 848 So.2d at 580.

RAn insurer has the burden of proving that a loss comes within a policy exclusion. North American Treatment Systems, Inc. v. Scottsdale Ins. Co., 05-0081 (La.App. 1 Cir. 8/23/06), 943 So.2d 429, 443, writs denied, 06-2918, 06-2803 (La. 2/16/07), 949 So.2d 424, 424. The determination of whether a contract is clear or ambiguous is a question of law. Cadwallader, 848 So.2d at 580. A summary judgment declaring a lack of coverage under an insurance policy may be rendered when there is no reasonable interpretation of the policy, when applied to the undisputed facts shown by the evidence supporting the motion, under which coverage could be afforded. P.D., 993 So.2d at 243-44.

In this matter, it is uncontroverted that at the time of Mr. Kirby’s accident, Ducote was the only named insured in Century’s CGL policy, in effect for the period from July 21, 2000 to July 21, 2001. It is also undisputed that Mr. Kirby was Ducote’s employee at the time of the accident. Century contends that the following provisions of its policy exclude coverage herein:

COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement.
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” ... to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” ... to which this insurance does not apply-
⅜ * *
2. Exclusions.
This insurance does not apply to:
e. Employer’s Liability
“Bodily injury” to:
ls(l) An “employee” of any insured arising out of in the course of:
(a) Employment by any insured; or
(b) Performing duties related to the conduct of the insured’s business;
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

Century maintains that the Employer’s Liability Exclusion clearly and plainly does not provide coverage for the claims asserted and that, particularly, the Employer’s Liability Exclusion excludes coverage for XL’s claims against it arising out of injuries to Mr. Kirby, Ducote’s employee. On the other hand, XL argues that the Employer’s Liability Exclusion failed to specifically address whether it applied to liability assumed under an insured contract, making it ambiguous. XL asserts that this ambiguity is based on the “insured contract” exception to the Contractual Liability Exclusion, which provides:

2. Exclusions.
This insurance does not apply to:
b. Contractual Liability
“Bodily injury” ... for which the insured is obligated to pay damages;
(1) By reason of the assumption of liability in a contract or agreement.
⅜ ⅜ ‡
This exclusion does not apply to liability for damages:
(a) That the insured would have in the absence of the contract or agreement; or
(b) Assumed in a contract or agreement that is an “insured contract,” provided the “bodily injury” ... occurs subsequent to the execution of the contract or agreement.
19Under the “Definitions” section of the policy, an “[i]nsured contract” included:
f. That part of any other contract or agreement pertaining to your business ... under which you assume the tort liability of another party to pay for “bodily injury” ... to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.

According to XL, it has a claim against Century as the conventional subrogee of its bankrupt insured, Exide. It argues that the Hold Harmless Agreement between Exide and Ducote meets the definition of an “insured contract” under the Century policy and, as a result, Century’s Contractual Liability Exclusion did not bar coverage for XL’s claims. It asserts that Century’s Employer’s Liability Exclusion, in failing to address liability assumed under an insured contract, is ambiguous as a matter of law requiring interpretation in favor of covei’age for XL’s claims.

At the outset, we recognize that an exception to an exclusion cannot be the basis for an inclusion within policy coverage. See Carrier v. Reliance Ins. Co., 759 So.2d at 40; Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d 191, 198. See also McKenzie & Johnson, Insurance Law and Practice, § 1:4, in 15 Louisiana Civil Law Treatise 9-10 (4th ed. 2012) (“An exception to an exclusion ... cannot be the basis of coverage for a person who is not an insured under the policy or for a person who is clearly excluded from coverage by other policy provisions.”). However, regardless of the interpretation of the Contractual Liability Exclusion herein, we find that the Employer’s Liability Exclusion is only subject to one reasonable interpretation. Further, the inapplicability of one exclusion does not necessarily negate the applicability of another distinct exclusion in the policy-

Looking at the plain language of the policy, the Employer’s Liability Exclusion applies not only when the insured, Ducote, is liable as an employer, but also when Ducote is liable “in any other capacity,” which would include Ducote’s capacity as an alleged contractual indemnitor of Exide. Further, the unambiguous language of the exclusion provides that it applies to “any obligation to share damages with or repay someone else who must pay damages” in connection with an employee’s injuries. Moreover, similar exclusions have been found to be clear and unambiguous. In Burrows v. Executive Property Management Co., 13-0914 (La.App. 4 Cir. 3/12/14), 137 So.3d 698, 704, the fourth circuit noted that cases, which have considered the exclusion at issue, have consistently found said exclusion to be clear and unambiguous. See also Vargas v. Daniell Battery Mfg. Co., Inc., 93-2282 (La.App. 1 Cir. 12/29/94), 648 So.2d 1103, 1107. Likewise, we find no ambiguity in the Employer’s Liability Exclusion.

Accordingly, we conclude that the Employer’s Liability Exclusion operates to bar XL’s claims against Century. Because we have concluded that XL’s claims are excluded by the Employer’s Liability Exclusion, we need not address whether XL has a right of action against Century.

CONCLUSION

For the foregoing reasons, we affirm the summary judgment of the trial court. Costs of this appeal are assessed against XL Insurance America, Inc.

AFFIRMED.

      . Exide filed a voluntary petition for relief under Chapter 11 in the United States Bankruptcy Court for the District of Delaware, Case No. 02-11125.

      . Exide’s second bankruptcy filing under Chapter 11 was in the United States Bankruptcy Court for the District of Delaware, Case No. 13-11482.

      . The summary judgment law was recently amended by 2015 La. Acts, No. 422, but the provisions of Act 422 do "not apply to any motion for summary judgment pending adjudication or appeal on [January 1, 2016],”

      . CGL policies are designed to protect the insured against losses to third parties that arise out of the insured’s business operations. CGL policies typically exclude from coverage personal injuries to employees. The primary purpose of an employee exclusion clause is to draw a sharp line between employees and members of the general public. Roundtree v. New Orleans Aviation Bd., 04-0702 (La.App. 4 Cir. 2/4/05), 896 So.2d 1078, 1087. See also Burrows v. Executive Property Management Co., 13-0914 (La.App. 4 Cir. 3/12/14), 137 So.3d 698, 704.

      . In support of its argument, XL refers to the federal decision in Hardy v. Ducote, 02-1520, 04-0789 (W.D. La. 5/4/07). To the extent that said decision conflicts with our opinion, we do not find it to be binding.