source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Charles GRAY, Jr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS THROUGH its OFFICE OF LEGAL AFFAIRS (License Control and Driver Improvement Division)
    NUMBER 2016 CA 0612
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 17, 2017
    Rehearing Denied February 20, 2017

      Appealed from the Sixteenth Judicial District Court, In and for the Parish of St. Mary, State of Louisiana, Suit Number 127525, Honorable Edward M. Leonard, Jr., Presiding
    J.P. Morelia, Patterson, LA, Counsel for Plaintiff/Appellant, Charles Gray, Jr.
    Stephen A. Quidd, Harrietta J. Bridges, Baton Rouge, LA, Counsel for Defen-dani/Appellee, Louisiana Dept, of Public Safetey and Corrections
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   GUIDRY, J.

|2In this administrative review proceeding, plaintiff, Charles Gray, Jr., appeals from a district court judgment affirming the decision of the Administrative Law Judge (ALJ) to suspend and disqualify Gray’s driving privileges for his refusal to submit to a chemical test for intoxication. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 6, 2014, Officer Wayne Anderson with the Houma Police Department was working patrol in Terrebonne Parish and traveling down Park Avenue when he observed a black 2011 Chevrolet Corvette pull out from a stop sign on Church Street into his lane of travel on Park Avenue, causing Officer Anderson to slam on his brakes and swerve to avoid a collision. After the Corvette turned left onto Park Avenue, Officer Anderson followed the vehicle in the left lane down Park Avenue and twice observed the vehicle drift over the white dashed line into’ the right lane and then drift back into the left lane. Thereafter, Officer Anderson activated his emergency lights and siren and conducted a traffic stop of Gray’s vehicle.

Upon coming into contact with Gray, Officer Anderson detected an odor of alcohol emitting from Gray’s breath and noticed that Gray’s eyes were glassy and bloodshot and that his speech was slurred. Officer Anderson asked Gray to perform a Standardized Field Sobriety Test and Gray refused. After advising Gray that if he refused to take the test, he would be placed under arrest, Gray again refused to take the test, and Officer Anderson placed Gray under arrest for failure to stop for a stop sign, a violation of La. R.S. 32:123(B); improper lane usage, a violation of La. R.S. 32:79; and driving while intoxicated (DWI), a violation of La. |sR.S. 14:98. Thereafter, Gray also refused to submit to a chemical test for intoxication.

Following Gray’s arrest, Officer Anderson seized Gray’s commercial driver’s license (CDL) and issued Gray a temporary receipt of license pursuant to La. R.S. 32:667(A)(1). In addition to authorizing Gray to temporarily operate a motor vehicle upon the public highways of Louisiana, the receipt also notified Gray that he had thirty days from the date of his arrest to make a written request to the Department of Public Safety and Corrections (Department) for an administrative hearing in accordance with the provisions of La. R.S. 32:668 to contest the Department’s one-year suspension of Gray’s driving privileges for his refusal to submit to the chemical test for intoxication. See La. R.S. 32:668(A)(2). Thereafter, Gray filed a written request for an administrative hearing challenging the Department’s decision to suspend his driving privileges. Following a hearing, the ALJ affirmed the Department’s decision, finding that the statutory requirements of the Louisiana Tests for Suspected Drunken Drivers Law, La. R.S. 32:668(A), were met and Gray refused to submit to a chemical test for intoxication.

On August 11, 2014, Gray filed a petition for judicial review in the district court, asserting that the ALJ’s decision was erroneous because: the police officer had no reasonable grounds or probable cause to stop him because he violated no traffic laws; the police officer had no reasonable grounds to believe that he was under the influence of an alcoholic beverage; the police officer did not properly advise him of his rights as required by La. R.S. 32:661; and he was not afforded due process of law at the original administrative hearing, because he was statutorily prohibited from issuing a subpoena of the officer who stopped him. After the filing of Gray’s petition for judicial review, the district court issued an order staying the Department’s decision to suspend Gray’s driving privileges pending the district court’s review of the matter.

| ¿Thereafter, on January 20, 2015, the assistant district attorney for the Thirty-Second Judicial District Court, Parish of Terrebonne, filed a motion to nolle prose-qui the charges against Gray for insufficient evidence. Specifically, the assistant district attorney noted that there was a “lack of objective evidence and very weak subjective evidence. Cannot prevail at trial.”

Prior to trial, the Department submitted a pre-trial memorandum wherein it asserted that the district court should not only uphold the Department’s decision to suspend Gray’s driving privileges for one year but should also uphold the Department’s one-year disqualification of Gray’s CDL based upon Gray’s refusal to submit to the chemical test for intoxication. Gray did not file an objection to consideration of this issue either prior to or at the trial of this matter before the district court.

Gray’s petition for judicial review came for a de novo trial before the district court on August 6, 2015. At the trial, the Department presented evidence as to the propriety of the one-year suspension of Gray’s driving privileges as well as the disqualification of his CDL. Particularly, with regard to disqualification, the Department presented evidence, over the objection of Gray, as to the Department’s proposed lifetime disqualification of Gray’s CDL in accordance with La. R.S. 32:414.2(A)(2)(f). After consideration of the pleadings, testimony of witnesses, evidence, and applicable law, the district court signed a judgment affirming the decision of the ALJ to suspend and disqualify Gray’s driving privileges for one year for refusing to submit to the chemical test for intoxication on May 6,2014.

Gray now appeals from the district court’s judgment.

DISCUSSION

In order to promote safety on Louisiana highways, the Louisiana Legislature enacted the implied consent law, La. R.S. 32:661, et seq., which addresses the testing of persons suspected of operating motor vehicles while under the influence |fiof alcoholic beverages or controlled dangerous substances. Veasman v. State, Dept. of Public Safety, 15-0516, p. 3 (La.App. 1 Cir. 11/9/15), 184 So.3d 88, 90. Louisiana Revised Statute 32:661(A)(1) provides, in pertinent part, that any person “operat[ing] a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test or tests of his ... breath ... for the purpose of determining the alcoholic content of his blood” if the person is “arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages.”

When a law enforcement officer places a person under arrest for violation of La. R.S. 14:98, La. R.S. 14:98.1, or any parish or municipal ordinance that prohibits operating a vehicle while intoxicated, and the person refuses to submit to an approved chemical test for intoxication, the officer is required to seize the driver’s license of the person under arrest and issue in its place a temporary receipt of license. La. R.S. 32:667(A)(1). Further, the Department is authorized to suspend the person’s driving privileges for one year from the date of suspension for the refusal. See La. R.S. 32:667(B)(2).

A person may request an administrative hearing to contest the Department’s decision in accordance with La, R.S. 32:668(A). At this hearing, the Department must prove that the officer had reasonable grounds to believe that the person had been driving under the influence of alcohol, that the person was placed under arrest and was advised by the officer as provided in La. R.S. 32:661, and that the driver refused to submit to the test upon request. See La. R.S. 32:668(A); Millen v. State, Dept. of Public Safety and Corrections, 07-0846, p. 5 (La.App. 1 Cir. 12/21/07), 978 So.2d 957, 961.

After a person has exhausted his remedies with the Department, he may file a petition for judicial review in the appropriate district court. La. R.S. | fi32:668(C)(l). On such review, the district court is required to conduct a trial de novo. Flynn v. State, Dept. of Public Safety and Correction, 608 So.2d 994, 999 (La. 1992); Millen, 07-0845 at p. 5, 978 So.2d at 961. As such, the district court is not restricted to a review of the ALJ’s findings, and the district court’s review can encompass the calling of witnesses, the taking of testimony, and the introduction of evidence. Millen, 07-0845 at p. 6 n.4, 978 So.2d at 961 n.4; see also Flynn, 608 So.2d at 997 and Jaubert v. Dept. of Public Safety, 323 So.2d 212, 214 (La. App. 4th Cir. 1975). Such a trial is a civil action amenable to all of the ordinary rales of procedure and proof. Further, the fact that this is an action for judicial review of a decision resulting from an administrative hearing does not change the burden of proof placed by law on the plaintiff. Stoltz v. Dept. of Public Safety and Corrections, 13-1968, p. 3 (La.App. 1 Cir. 6/25/14), 147 So.3d 1131, 1133.

In the instant case, the Department suspended Gray’s driving privileges and disqualified Gray from operating a commercial motor vehicle for one year based upon his refusal to submit to a chemical test for intoxication. Gray requested an administrative hearing before the ALJ, at the conclusion of which the ALJ affirmed the Department’s decision. Gray sought further review of the Department’s decision in the district court, which also affirmed the Department’s decision. On appeal, Gray first contends that the district court erred in finding that the Department established that the law enforcement officer had reasonable grounds to believe that Gray had been driving while under the influence of alcoholic beverages.

At the trial of this matter, the Department introduced the testimony of Officer Anderson. According to Officer Anderson, he observed the black Corvette that Gray was driving pull out from a stop sign on Church Street into his lane of travel on Park Avenue, causing Officer Anderson to slam on his brakes and swerve to avoid a collision. After Gray executed a left turn on to Park Avenue, Officer 17Anderson followed Gray and noticed Gray’s vehicle cross the center line two times. Upon stopping Gray and speaking with him, Officer Anderson noticed that Gray had glassy and bloodshot eyes and that his speech was slurred. Officer Anderson also detected a strong odor of alcoholic beverage emitting from Gray’s breath. Officer Anderson asked Gray if he had consumed alcoholic beverages, to which Gray responded “no,” but when asked to perform a field sobriety test, Gray refused. Officer’s Anderson’s testimony was corroborated by the observation report, which was admitted into evidence.

Gray asserts that observation of an odor of alcohol, glassy and bloodshot eyes, and slurred speech is insufficient to constitute reasonable grounds. However, Gray fails to also take into consideration the totality of the circumstances upon which those observations were made, including the erratic driving behavior observed by Officer Anderson and the fact that Officer Anderson had to take evasive action to avoid a collision with Gray’s vehicle when Gray failed to observe a stop sign. See Henry v. State, Dept. of Public Safety, 01-0103, p. 4 (La. App. 3rd Cir. 6/27/01), 788 So.2d 1286, 1289. Further, while Gray may raise on appeal alternatives for his glassy and bloodshot eyes and slurred speech (he., he had been driving an eighteen wheeler all day prior to his arrest), Gray did not divulge this information to Officer Anderson at that time of his arrest. Accordingly, considering all of the circumstances and the information known to Officer Anderson at the time of Gray’s arrest, we find that Officer Anderson had reasonable grounds to believe that Gray was driving while under the influence of alcohol.

Furthermore, we find no merit to Gray’s contention that La. R.S. 32:661(A)(2) requires the Department to produce written policies of the Houma Police Department defining the “circumstances which constitute sufficient reasonable grounds to trigger the implied consent law.” Louisiana Revised Statute |832:661(A)(1) states that any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood. Subparagraph (A)(2) further states that “[t]he test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person ... to have been driving ... a motor vehicle upon the public highways of this state while under the influence of ... alcoholic beverages ... The law enforcement agency by which such officer is employed shall designate in writing and under what conditions which of the aforesaid tests shall be administered.”

Accordingly, a plain reading of La. R.S. 32:661(A)(1) and (2) demonstrates that the only written policies required of the law enforcement agency are policies setting forth under what conditions which of the tests referred in (A)(1), he., blood, breath, urine or other bodily substance, are to be administered. Contrary to Gray’s assertion, the focus of this language is on test administration, not the officer’s decision that he has reasonable grounds to believe a person was driving a vehicle while under the influence of alcohol. Accordingly, we find Gray’s argument that the Department failed to meet its burden in establishing reasonable grounds to believe Gray was driving while under the influence of alcohol to be without merit.

Gray also asserts that the district court erred in failing to order the reinstatement of his personal driving privileges pursuant to La. R.S. 32:667(H)(1). Louisiana Revised Statute 32:667(H)(1) provides, in pertinent part:

When any person’s driver’s license has been seized, suspended, or revoked, and the seizure, suspension, or revocation is connected to a charge or charges for violation of a criminal law, and the charge or ^charges do not result in a conviction, plea of guilty, or bond forfeiture, the person charged shall have his license immediately reinstated and shall not be required to pay any reinstatement fee if at the time for reinstatement of driver’s license, it can be shown that the criminal charges have been dismissed or that there has been a permanent refusal to charge a crime by the appropriate prosecutor or there has been an acquittal.

However, La. R.S. 32:667(H)(3), which was enacted by Acts 2012, No. 663, § 1, effective June 7, 2012, provides an exception to (H)(1), providing:

Paragraph (1) of this Subsection shall not apply to a person who refuses to submit to an approved chemical test upon a second or subsequent arrest for R.S. 14:98 or 98.1, or a parish or municipal ordinance that prohibits driving a motor vehicle while intoxicated. However, this Paragraph shall not apply if the second or subsequent arrest occurs more than ten years after the prior arrest.

In the instant case, the assistant district attorney for the Thirty-Second Judicial District Court, Parish of Terrebonne, filed a motion to nolle prosequi the charges against Gray related to his May 6, 2014 arrest for insufficient evidence. However, Gray had previously been arrested on October 11, 2009, and charged with a violation of La. R.S. 14:98 for which he pled guilty. Therefore, even though the charges related to the instant refusal and suspension of his driving privileges did not result in a conviction, he is not entitled to have his personal driving privileges reinstated due to the prior arrest.

Finally, because Gray possessed a CDL, in addition to suspending his personal driving privileges, the Department also disqualified Gray from operating a commercial motor vehicle for one year. Louisiana Revised Statute 32:414.2 specifically addresses commercial motor vehicle drivers and grounds for disqualification of commercial driving privileges. Specifically, La. R.S. | m32:414.2(A)(4)(d) provides, in pertinent part, that “any person shali.be disqualified from operating a commercial motor vehicle for a minimum period of one year for ... [a] first offense of refusal to submit to an alcohol concentration or drug test, while operating a commercial motor vehicle or noncommercial motor vehicle by a commercial driver’s license holder.”

The language of the statute is clear that a refusal alone results in the disqualification of commercial driving privileges, regardless of any subsequent criminal filings or proceedings. See Dore v. State, Dept. of Public Safety, Office of Motor Vehicles, 13-892, p. 3 (La. App. 3rd Cir. 2/12/14), 153 So.3d 1089, 1092; see also Navarre v. Louisiana Dept. of Public Safety and Corrections, Office of Motor Vehicles, 13-949, p. 7 (La. App. 3rd Cir. 2/12/14), 153 So.3d 1096, 1101, writ denied, 14-0512 (La. 4/25/14), 138 So.3d 645 and Austin v. Dept. of Public Safety, Office of Motor Vehicles, 46,654, pp. 4-5 (La. App. 2nd Cir. 11/2/11), 77 So.3d 474, 476-77. Accordingly, because Gray, the holder of a CDL, refused to submit to an alcohol concentration test while operating a noncommercial motor ve-hide, he was subject to an automatic disqualification of his commercial driving privileges for one year. See La. R.S. 32:414.2(A)(4)(d).

Accordingly, from our review of the entire record, we find no error in the district court’s judgment affirming the suspension and disqualification of Gray’s driving privileges for his refusal to submit to the chemical test for intoxication on May 6, 2014.

^CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court. All costs of this appeal are assessed to Charles Gray, Jr.

AFFIRMED.

      . Officer Anderson referred to the street he was traveling on as West Park Avenue in his testimony at the judicial review hearing, but the arrest report refers to the street as Park Avenue.

      . We note that Gray docs not. distinguish between his personal driving privileges and his commercial driving privileges, However, his commercial driving privileges, as discussed supra, are controlled by La. R.S. 32:414.2 and as such, are not subject to the provisions of La. R.S. 32:667(1-1). See Austin v. Dept. of Public Safety, Office of Motor Vehicles, 46,-654, p. 3 (La. App. 2nd Cir, 11/2/11), 77 So.3d 474, 475.

      . Gray contends on appeal that because the first arrest occurred before the enactment of La. R.S, 32:667(H)(3), the application of (H)(3) to the facts of this case constitutes a retroactive application of a substantive law, However, this precise argument has been previously addressed by this court in Paul v. State, Dept. of Public Safety, 15-0073, pp. 11-13 (La.App. 1 Cir. 9/18/15), 182 So.3d 178, 184-185, wherein this court found that the application of La. R.S, 32:667(H)(3) with a prior arrest occurring before the effective date of the law would not result in a retroactive application of the law in violation of La. R.S, 1:2. Rather, the application of La. R.S. 32:667(H)(3) to a refusal to submit to chemical testing for intoxication when such refusal occurs after the statute's effective date constitutes a prospective application of the law. Paul, 15-0073 atp. 13, 182 So,3d at 185; see also Veasman, 15-0516 atp. 5 n.1, 184 So.3d at 91-92 n.1.

      . As previously noted, the Department raised the issue of lifetime disqualification of Gray’s commercial driving privileges pursuant to La. R.S. 32:414.2(A)(2)(f) for the first time at trial. Louisiana Revised Statute 32:414.2(A)(2)(f) provides, in pertinent part that "Any person shall be disqualified for life from operating a commercial motor vehicle for [t]wo or more of any combination of the offenses listed in Paragraph (A)(4), which arise from different episodes.” The Department asserted that the ■ two offenses were Gray's previous submission to a chemical test in connection with his arrest on October 11, 2009 and his May 4, 2014 refusal to submit to an alcohol concentration test.
      The district court expressed concern about considering an issue that had not first been considered by the ALJ. However, despite objection from Gray’s counsel) the district court allowed the Department to introduce evidence on the issue of lifetime disqualification "only for the purpose of perfecting a record in case it goes up further” and noting he "would hear the evidence. Now what I do with it after that is kind of up to me.”
      The language of the judgment at issue, affirming the suspension and disqualification of Gray's driving privileges for refusing to submit to a chemical test for intoxication on May 6, 2014, indicates that the district court ultimately did not consider that the issue of lifetime disqualification was properly before it, as the judgment only addresses the suspension and disqualification of Gray's commercial driving privileges related to the one offense. See La. R.S. 32:414.2(A)(4)(d). Because the Department did not answer the appeal contesting the district court’s failure to consider or rule upon the issue of lifetime disqualification, and because Gray has indicated that this issue is presently pending before the Sixteenth Judicial District Court, we do not address whether Gray’s commercial driving privileges are subject to a lifetime disqualification pursuant to La. R.S. 32:414.2(A)(2)(f).


author: HIGGINBOTHAM, J.

text:
    James E. SHIELDS, Jr., Christine F. Shields, James E. Shields, III and Joseph Luke Shields v. ALVIN R. SAVOIE & ASSOCIATES, INC. d/b/a Savoie Construction, Foster-Taylor Fireplaces, Inc., Lennox Hearth Products LLC, American Empire Surplus Lines Insurance Company, The Travelers Indemnity Company of Connecticut, and Ace American Insurance Company Asi Lloyds as Subrogee of James and Kristin Shields v. Savoie Construction, Inc., Savoie Construction and Development, LLC, and Foster-Taylor Fireplaces, Inc.
    NO. 2016 CA 0827
    No. 2016 CA 0828
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 17, 2017
    James E. Shields, Jr., James E. Shields, Sr., Gretna, LA, Attorneys for Plaintiffs-Appellants, James E. Shields, Jr., Christine F. Shields, James E. Shields, III, and Joseph Luke Shields
    George J. Richaud, Metairie, LA, Attorney for Defendant-Appellee, Alvin R. Sa-voie & Associates, Inc. d/b/a Savoie Construction
    Christopher R. Teske, Eric S. Charleston, New Orleans, LA, Attorneys for Defendant-Appellee, American Empire Surplus Lines Insurance Company
    Sean M. Casey, Mandeville, LA, Attorney for Defendants-Appellees, Foster-Taylor Fireplaces, Inc. and the Travelers Indemnity Company Connecticut
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

| sIn this consolidated matter involving issues surrounding payments made to homeowners for damages due to a residential home fire, the homeowners, James E. Shields, Jr. and Christine F. Shields, along with their two sons (the Shields), appeal the summary judgment dismissal of their builder’s liability insurer, American Empire Surplus Lines Insurance Company (American Empire). This consolidated appeal is closely related to another consolidated appeal decided this date, which involves the same parties and same issues: Shields v. Alvin R. Savoie & Associates, Inc., d/b/a Savoie Construction and American Empire Surplus Lines Insurance Company, 2016-0825 c/w 2016-0826 (La. App. 1st Cir. 2/17/17), 214 So.3d 27, 2017 WL 658745. In fact, the parties filed duplicate briefs raising the same assignments of error in all of the consolidated appeals. While the parties sought to consolidate all four appeals, this court denied that request on September 27, 2016. However, the four appeals were assigned for consideration by the same panel on the same docket.

In the related appeals, we outlined the facts and procedural history of this protracted litigation in detail before concluding that the trial court did not err in granting summary judgment in favor of the builder, Alvin R. Savoie & Associates, Inc., d/b/a Savoie Construction (Savoie Construction), and in dismissing all of the homeowners’ claims against the builder. We also concluded in the related consolidated appeal that since Savoie Construction had a valid defense of statutory per-emption under the Louisiana New Home Warranty Act (NHWA), then by extension and operation of law, that defense was available to Savoie Construction’s liability insurer, American Empire. Because we have previously determined that the Shields’ claims against Savoie Construction were perempted pursuant to the NHWA in the related appeals, it follows that the Shields no longer |4have a viable claim against Savoie Construction’s insurer, American Empire. Thus, the summary judgment dismissal of American Empire from this litigation was correct, albeit for different reasons than those expressed by the trial court.

Consequently, for the same reasons expressed in our opinion in the related appeals decided this day, we hereby affirm via summary opinion, in accordance with the Uniform Rules of Louisiana Courts of Appeal, Rule 2-16.2, the trial court’s judgments granting summary judgment in favor of American Empire and dismissing all of the Shields’ claims against American Empire. All costs of this consolidated appeal are assessed against the Shields.

AFFIRMED.

Chutz, J., concur


author: CALLOWAY, J. PETTIGREW, J., McDONALD, J.

text:
    Debra S. WILLIAMS and John M. Williams, Sr. v. LIBERTY MUTUAL FIRE INSURANCE COMPANY and Walk-On’s Bistreaux and Bar Burbank, LLC
    2016 CA 0996
    Court of Appeal of Louisiana, First Circuit.
    MARCH 13, 2017

      John B. Lambremont, Sr., Baton Rouge, Louisiana, Attorney for Plaintiffs/Appellants, Debra S. Williams and John M. Williams, Sr.
    Rachel M. Roe, Baton Rouge, Louisiana, Attorney for Defendants/Appellees, Liberty Mutual Fire Insurance Company and Walk-On’s Bistreaux & Bar Burbank, LLC
    BEFORE: PETTIGREW, McDonald, and galloway, jj.

      . Hon. Curtis Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

I {¡Plaintiffs, Debra S. Williams and John M. Williams, Sr., appeal a judgment rendered by the trial court granting summary judgment on behalf of defendants, Liberty Mutual Fire Insurance Company (Liberty Mutual) and Walk-On’s Bistreaux & Bar Burbank, LLC (Walk-On’s) (collectively, defendants), and dismissing all claims. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs filed suit against defendants for personal injury damages and loss of consortium as a result of a trip-and-fall accident, which Ms. Williams sustained on or about July 9, 2013, at Walk-On’s, a restaurant located on Burbank Drive in Baton Rouge, Louisiana. On that date, at approximately 8:00 p.m., Ms. Williams was exiting the restaurant when she fell from the curb to the parking lot below, sustaining several injuries. Plaintiffs sued both Walk-On’s and its liability carrier, Liberty Mutual for damages.

Defendants filed a motion for summary judgment on November 19, 2015, claiming that the curb, sidewalk, and parking lot did not pose an unreasonably dangerous condition and that any condition of the area was open and obvious. After a hearing, the trial court granted the summary judgment and dismissed all claims against the defendants. It is from this judgment that plaintiffs appeal.

ERRORS

In three assignments of error, plaintiffs essentially claim that the trial court erred in finding that the expert affidavit they offered in opposition to the motion for summary judgment was insufficient evidence of a defective condition of the sidewalk/curb/parking lot and in finding that the condition of the sidewalk/curb/parking lot was open and obvious.

|aLAW AND DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, 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). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. See La. C.C.P. art. 966(A)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. In re Succession of Beard, 2013-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

The burden of proof is on the mover. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support 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. See La. C.C.P. art. 966(C)(2); Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/16/14), 171 So.3d 851, 854.

With regard to merchants, La. R.S. 9:2800.6, provides in pertinent part:

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 14burden 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 safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

A merchant owes a duty to persons using his property to keep such property in a reasonably safe condition. La. R.S. 9:2800.6(A). The absence of an unreasonably dangerous condition of the thing implies the absence of a duty on the part of the defendant. Oster v. Dep’t of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La. 1991).

In order to prove that a merchant is liable for damages sustained as a result of a fall due to a condition that existed in or on the merchant’s premises, a plaintiff must prove by a preponderance of the evidence through, either, direct or circumstantial evidence: (1) the existence of a condition that presented an unreasonable risk of harm which was reasonably foreseeable; (2) the merchant’s actual or constructive notice of the condition; and (3) the merchant’s failure to exercise reasonable care. Dupas v. Travelers Prop. Cas. Ins. Co., 2000-12 (La.App. 3 Cir. 5/3/00), 762 So.2d 127, 129, writ denied, 2000-1541 (La. 6/30/00), 766 So.2d 548. Failure to prove any one of the foregoing requirements is fatal to a plaintiffs case. See Moore v. Murphy Oil USA, Inc., 2015-0096 (La.App. 1 Cir. 12/23/15), 186 So.3d 135, 145, writ denied, 2016-00444 (La. 5/20/16), 191 So.3d 1066.

A hazardous condition is one that creates an unreasonable risk of harm to customers under the circumstances. Pena v. Delchamps, Inc., 2006-0364 (LaApp. 1 Cir. 3/28/07), 960 So.2d 988, 991, writ denied, 2007-0875 (La. 6/22/07), 959 So.2d 498. Merchants are not insurers of their patrons’ safety, and a customer is under a duty to use ordinary care to avoid injury. Cusimano v. Wal-Mart Stores, Inc., 2004-0248 (La.App. 1 Cir. 2/11/05), 906 So.2d 484, 488. A merchant is not absolutely liable every time an accident happens. Leonard v. Wal-Mart Stores, Inc., 97-2154 (La.App. 1 Cir. 11/6/98), 721 So.2d 1059, 1061.

There is no fixed rule for determining whether a defect in a sidewalk is unreasonably dangerous. See Temple v. Morgan, 2015-1159 (La. 1 App. Cir. 6/3/16), 196 So.3d 71, 77, writ denied, 2016-1255 (La. 10/28/16), 208 So.3d 889.

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

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

Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533 (La. 2/20/04), 866 So.2d 228, 235. 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, 365.

The second prong of the risk-utility balancing test focuses on whether the defective condition is obvious and apparent, or as it has come to be commonly known, “open and obvious.” Generally, a defendant does not have a duty to protect against an open and obvious hazard. Broussard v. State ex rel. Office of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 184; Pitre v. Louisiana Tech Univ., 95-1466 (La. 5/10/96), 673 So.2d 585, 591, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996). In order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all, i.e., everyone who may potentially encounter it. Broussard, 113 So.3d at 184, 192; Caserta v. Wal-Mart Stores, Inc., 2012-0853 (La. 6/22/12), 90 So.3d 1042, 1043 (per curiam).

Following Broussard, an issue arose as to whether the trial court could determine the “open and obvious” issue by summary judgment. In later opinions, the supreme court clarified its position beginning with Bufkin, 171 So.3d at 859 n.3, stating that the opinion in Broussard “should not be construed as precluding summary judgment when no legal duty is owed because the condition encountered is obvious and apparent to all and not unreasonably dangerous.”

Bufkin was soon followed by three more supreme court decisions granting summary judgments where the alleged defects were open and obvious. See Rodriguez v. Dolgencorp, LLC, 2014-1725 (La. 11/14/14), 152 So.3d 871, 872 (per curiam) (shopping cart that patron tripped over was open and obvious); Allen v. Lockwood, 2014-1724 (La. 2/13/15), 156 So.3d 650, 653 (per curiam ) (unpaved grassy parking area where accident occurred was open and apparent); Ludlow v. Crescent City Connection Marine Division, 2015-1808 (La. 11/16/15), 184 So.3d 21 (per curiam) (any danger presented by a concrete barrier on a vehicle ramp was “obvious and apparent to anyone who might potentially encounter it”).

In the absence of any material issues of fact, a court may determine by summary judgment that a defect is open and obvious and, therefore, does not present an unreasonable risk of harm. Temple, 196 So.3d at 78.

The trial court had to decide if there was a genuine issue of material fact as to whether the complained-of condition, here the curb, sidewalk and parking lot, created an unreasonable risk of harm. Summary judgment is proper when no legal duty is owed because the condition encountered is obvious and apparent to all and not unreasonably dangerous. Moore, 186 So.3d at 146-48.

17The evidence presented by defendants established that Ms. Williams fell from the curb after exiting Walk-On’s, while walking and talking with a group of people. Ms. Williams arrived at the restaurant as a passenger in a car driven by her son, and he parked in a handicapped spot. To enter the restaurant, she used one of the available handicapped ramps. The handicapped ramp was painted blue. Upon leaving the restaurant, Ms. Williams started walking and stated that she did not know there was a “step down or drop down.” She did not use the handicapped ramp to return to her car, but stated that she went diagonally or at an angle and stepped off the curb. The evidence also contained several photographs showing the exact area of the curb from which Ms. Williams fell.

After noting the evidence presented by Ms. Williams and reviewing the photographs, the trial court noted that “[i]t’s just a basic curb,” After a de novo review of the record, we conclude that the defendant’s evidence was sufficient to shift the burden of proof to plaintiffs to come forward with evidence to demonstrate that they would be able to meet their burden of proof at trial. See La, C.C.P. art. 966 (C)(2); Allen, 156 So.3d at 653.

In opposition to the motion for summary judgment, plaintiffs submitted an affidavit of Ladd P. Ehlinger, a forensic architect. Mr. Ehlinger’s affidavit incorporates a preliminary report that he had prepared. He states that “a lack of warning signs, a change of texture, and/or a change of color between the sidewalk ... and the parking lot surface, in addition to the uneven paving surface at the bottom of the curb (landing) constitute substandard and hazardous premises, which violate seven different safety codes which are mentioned on page 3 of my report.” Mr. Ehlinger also makes the conclusory statement that the one^-step condition and uneven paving surface of the curb presented a hazard and unreasonable risk of harm, which caused Ms. Williams’s fall and injury.

| sMr. Ehlinger noted in his preliminary report that he had not visited the site of Ms. Williams’s fall but had viewed photographs. He indicated that the curb had no warning signs or contrasting paint color or any other type of warning. Mr. Ehlinger also discusses the ponding of water, although there is no allegation that water had anything to do with Ms. Williams’s fall Mr. Ehlinger admits he did not know when the building at issue was built, and then refers to numerous safety codes.

The trial court noted that Mr. Ehlinger’s report was conclusory with little or no factual support. We also recognize that even though Mr. Ehlinger refers to many different safety codes, he does not say how the curb or parking lot at issue violated any of those codes, if those codes are applicable to this building, or even the height of this curb. As the trial court remarked, the report refers to building codes for stairs, handrails, and pooling of water, but has no information pertaining to curbs, the condition at issue in this case. An expert’s opinion that is conclusory, largely irrelevant to the alleged defect he has been asked to consider, and which is based on little or no factual support does not create a genuine issue of material fact. See Millican v. River Road Const., Inc., 2005-485 (La. App. 5 Cir. 2/3/06), 924 So.2d 255, 257-58; Marrogi v. Gerber, 2000-1091 (La. App. 4 Cir. 5/16/01), 787 So.2d 1098, 1108.

Therefore, we must agree with the trial court that plaintiffs did not produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden at trial. An accident, alone, does not support the imposition of liability, particularly considering the normal hazards pedestrians face while traversing sidewalks and parking lots in this state. Williams v. Leonard Chabert Medical Center, 98-1029 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 211, writ denied, 2000-0011 (La. 2/18/00), 754 So.2d 974.

|aA pedestrian has a duty to see what should be seen and is bound to observe his course to see if his pathway is clear. Bufkin, 171 So.3d at 855. As stated in Williams:

[W]e do not live in a perfect world. We cannot impose a duty on a landowner to have perfectly flawless premises. Sidewalks and parking lots are not always level, and individuals must assume some responsibility for their own safety. Everyday life presents risks which must be encountered and negotiated.

Williams, 744 So.2d at 211.

Furthermore, plaintiffs point to no law that requires a merchant to mark and paint all curbs. Plaintiffs rely on Calcagno v. Kuebel, Fuchs P’ship, 2001-691 (La.App. 5 Cir. 11/14/01), 802 So.2d 746, where the plaintiff fell from a curb that had been painted bright red two years prior to the accident. At the time of the accident, the curb had faded to a light pinkish, gray color that created an optical illusion, making it difficult to see exactly where the curb was. Id. at 751. The court affirmed the jury decision that the curb was unreasonably dangerous.

The facts of Calcagno are distinguishable from the present case where there is no allegation, or evidence, of any optical illusion or any other reason that Ms. Williams was unable to see the curb. In Labit v. Palms Casino & Truck Stop, Inc., 2011-1552 (La.App. 4 Cir. 5/9/12), 91 So.3d 540, 546, writ denied, 2012-1310 (La. 9/28/12), 98 So.3d 843, the court affirmed summary judgment for the defendant, finding that an unpainted wheel stop did not create an unreasonable risk of harm. The defendant’s expert attested that there was no building code or other Louisiana requirement that required wheel stops to be painted. Id. at 545. The Labit court also cited Doane v. Wal-Mart Discount Stores, Inc., 96-2716 (La.App. 4 Cir. 6/25/97), 697 So.2d 309, 311, writ denied, 97-1852 (La. 10/17/97), 701 So.2d 1328 (summary judgment was appropriate where (1) there was no testimony in the record, lay, or expert, that painting speed bumps the same color as stripes, creates an unreasonable risk of harm; and (2) the plaintiff offered no design ImStandards or studies to prove her theory that the use of the same color on the speed bump was unreasonably dangerous).

In Trice v. Isaac, 99-839 (La.App. 5 Cir. 2/16/00), 759 So.2d 843, writ denied, 2000-1113 (La. 6/2/00), 763 So.2d 600, the court affirmed a judgment in favor of the defendant and held that elevation changes between a parking lot and walkway did not create an unreasonable risk of harm. The plaintiff argued that since there was no differentiation in color or texture, he was unable to see the potential hazard. The court found that the photographs showed an elevated walkway, which although made of the same material as the parking area, was clearly a step up. Therefore, it was not unreasonably dangerous. Id. at 847.

This court in Spencer v. Benny’s Car Wash, LLC, 2011-1708 (LaApp. 1 Cir. 5/4/12), 2012 WL 1580601 (unpublished opinion), determined that the existence of an auto mechanic’s oil-change pit in an automobile garage did not present an unreasonably dangerous condition. The plaintiff fell into the oil-change pit while walking holding registration papers in her hand. Although at trial she denied looking at those papers, her medical records indicated that she was not looking where she was going at the time of the fall. This court noted that a pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear. Id., 2012 WL 1580601 at * 12. In Spencer, the oil-change pit should have been observable to anyone who was looking where they were going. Id., 2012 WL 1580601 at * 13. This court cited numerous other cases finding no unreasonably dangerous condition in trip-and-fall cases when the plaintiff should have observed the condition. Id., 2012 WL 1580601 at * 13 n.19.

The facts of the present case are that Ms. Williams was walking and talking at the time she stepped off the curb. She did not see the curb when she fell. We agree with the trial court that this was a basic curb. There is nothing in the record that establishes that the curb created an unreasonable risk of harm. As the trial |n court stated, “[a] simple curb in a parking lot, in and of itself, does not create an unreasonable risk of harm. It’s open and obvious.”

CONCLUSION

For the above and foregoing reasons, the trial court’s April 18, 2016 judgment granting Liberty Mutual Fire Insurance Company and Walk-On’s Bistreaux & Bar Burbank, LLC’s motion for summary judgment and dismissing the claims of Debra S. Williams and John M. Williams, Sr. with prejudice, is hereby affirmed. Costs of this appeal are assessed against plaintiffs, Debra S. Williams and John M. Williams, Sr.

AFFIRMED.

Pettigrew, J. concurs with the Results and assigns Reason

McDonald, J. concurs and assigns reasons.

PETTIGREW, J.,

CONCURS IN THE RESULTS, AND ASSIGNS REASONS.

| ,The majority cites Oster v. Dep’t of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La. 1991), that the absence of an unreasonably dangerous condition of the thing implies the absence of a duty of the defendant. I disagree with that particular language in Oster. In my humble opinion the absence of an unreasonably dangerous condition of the thing only means there was no breach of duty by the defendant.

The majority also discusses the legal term “open and obvious,” which has been adopted by the courts of this state. I personally have concerns in how the courts are utilizing said term. It appears to me the courts are using it as we used to use the previous concept of contributory negligence, which was an automatic bar to someone recovering. I remind everyone we are now a comparative fault state. La. Civil Code art. 2323. The concept of contributory negligence has been subsumed into our analysis of comparative fault. In my opinion, “open and obvious” does not mean a duty does not exist. However, if something is found to be “open and obvious,” it is relevant in determining a breach of duty and whether an unreasonable risk of harm is present.

Having said the above, I will concur with the results reached by the majority because I find there was no breach of duty by defendants, and the curb did not create an unreasonable risk of harm.

McDONALD, J.

Concurring:

hAnd so the discussion continues without a resolution visible on the horizon. Is the question of whether a defect or hazardous condition is “open and obvious” a question of law or fact? If it is “open and obvious” to everyone, does that free the owner or custodian from a duty to warn? Or, is there still a duty to warn, but there is no breach of this duty since the condition is “open and obvious” to everyone? If it is a legal question, then the judge decides it; if it is factual, then the trier of fact decides whether it is “open and obvious” and how to apportion fault if necessary. In spite of various decisions attempting to resolve this issue after Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La. 4/5/13), 113 So.3d 175, I believe it remains unresolved as questioned by my colleague in his concurrence. Also see Temple v. Morgan, 15-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, writ denied, 16-1255 (La. 10/28/16), 208 So.3d 889, 2016 WL 6777472.

However, in the present case I do not believe the “open and obvious” issue needs to be addressed because I do not believe the plaintiff has proven the threshold issue that a defect exists. The curb at Walk-On’s is an ordinary curb transitioning from a parking lot to a sidewalk as found all over this city, state, and country. The elevation change acts as a parking bumper for cars parked in the lot. |2It is similar to the one at the front of this courthouse. I do not believe the mere existence of this type of parking lot transition creates a defect or hazardous condition. Plaintiff filed the preliminary report of a forensic architect in an attempt to prove this critical point. However, I agree that this report is woefully inadequate and virtually useless.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by 2015 La. Acts, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act. As this motion for summary judgment was filed on November 19, 2015, we refer to the former version of the article in this case. See 2015 La. Acts, No. 422, §§ 2 and 3.

      . For a thorough discussion of this issue, see Temple., 196 So.3d at 77-78.


author: HOLDRIDGE, J. CRAIN, J.,

text:
    Elizabeth ALVARADO v. LODGE AT THE BLUFFS, LLC, James River Insurance Company, and Cole P. Properties, L.L.C.
    NO. 2016 CA 0624
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 29, 2017

      Joseph M. Bruno, Daniel A. Meyer, New Orleans, Louisiana, Attorneys for Plain-tiffyAppellant, Elizabeth Alvarado
    D. Scott Rainwater, Chris W. Caswell, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, Lodge at the Bluffs Condominium Association, Inc. and James River Insurance Company
    Ney J. Gehman, Metairie, Louisiana, Attorney for Defendani/Appellee, Cole P. Properties, L.L.C.
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   HOLDRIDGE, J.

LThe plaintiff appeals a summary judgment dismissing her tort claims against the defendants. We affirm.

FACTS AND PROCEDURAL HISTORY

Elizabeth Alvarado alleges that she sustained injuries on August 6, 2013, when a stool collapsed beneath her while she and her husband, Dr. Luis Alvarado, were paid guests at The Lodge at the Bluffs, a condominium resort in St. Francisville, Louisiana. On March 24, 2014, Elizabeth filed suit against the Lodge at the Bluffs Condominium Association, Inc., and its insurer, James River Insurance Company, as well as Cole P. Properties, L.L.C., the owner of the condominium unit in which the stool was located.

After denying any liability, the Lodge and Cole Properties filed motions for summary judgment seeking a dismissal of Elizabeth’s claims. The Lodge asserted that it did not own or maintain the stool and that it had no prior knowledge of any defects in the stool. Cole Properties did not dispute that it owned the unit, but contended that it did not have custody or garde of the stool, because the Lodge contractually assumed that responsibility. Cole Properties further asserted that the plaintiff could not prove that the stool had a defect or that Cole Properties knew or should have known of any defect. Elizabeth opposed both motions.

The evidence offered in connection with the motions for summary judgment established that the condominium unit leased by the Alvarados was owned by Cole Properties and was included in a “rental pool.” For units included in the rental pool, the resort functioned much like a hotel, with the Lodge being responsible for | sbooking guests, collecting and remitting rent, and cleaning the units before and after a guest’s stay.

The interior of each unit, including the furniture, was owned by the respective unit owners. The furniture in the subject unit (sometimes referred to as “unit 10”) included a small stool that was located in front of a vanity and mirror. The stool, according to both Elizabeth and Luis, appeared normal and did not look broken or otherwise unusable. As Elizabeth prepared to use the vanity area, she sat on the stool and it collapsed, causing her to fall to the floor. After assisting his wife, Luis inspected the stool and immediately noticed that two or three screws were missing from its underside. Luis searched throughout the room for the screws but did not find them.

After the incident was reported, an employee of the Lodge, Elizabeth Smith, came to unit 10 and observed the bottom of the stool where the screws were missing. After looking around on the floor, Smith was also unable to find any of the missing screws. Smith prepared a statement documenting the accident, wherein she stated, in relevant part, “Mrs. Alvarado, a guest in Unit 10, sat on the vanity stool and it collapsed under her, due to two missing screws.” Photographs of the stool attached to Smith’s deposition show empty screw holes where the legs of the stool attach to its underside.

In denying responsibility for the stool’s condition, both defendants relied upon provisions contained in the “RENTAL POOL AGREEMENT” applicable to unit 10. Pursuant to that agreement, Cole Properties was responsible for furnishing and maintaining the unit, but the Lodge was obligated to make reasonable efforts to notify Cole Properties of any necessary repairs. The Lodge also had the right to make the repairs, but the cost of the repairs had to be paid by Cole Properties.

^Depositions of representatives of both defendants were also introduced in connection with the motions. A representative of the Lodge testified that the unit owner was responsible for everything inside a unit, including the furniture. However, according to a representative of Cole Properties, the owner relied on the Lodge to maintain, inspect, and repair the unit.

The evidence also established that condominium units in the rental pool were cleaned by employees of the Lodge before and after each rental by a guest. If a member of the cleaning staff noticed any issues with a unit, the matter was noted in a cleaning report and was communicated to a supervisor for further attention. The Lodge was not aware of any reported problems for unit 10; and the cleaning reports for the unit, which was regularly rented, did not identify any problems with it prior to the Alvarados’ arrival.

The motions proceeded to a hearing where the trial court ruled in favor of both defendants, explaining:

Clearly, either the Lodge or Cole P. Properties had legal guard or custody of this vanity stool .... However, I don’t find it necessary to determine which of those entities had legal custody because I find that neither Cole P. Properties nor the Lodge knew, or reasonably should have known, that there was a defect in this vanity stool.
It is simply not reasonable to expect either party, be they owner or non-owner custodian, in a rental unit to have their employees pick up, turn over, and inspect every piece of furniture to search for defects each time a unit is rented out. When a piece of furniture visually appears in a totally normal condition!;,] it is reasonable to proceed on the belief that it is in normal usable condition to be utilized in the manner it was intended.

The trial court signed a judgment on December 30, 2015, granting both motions for summary judgment and dismissing the claims against all defendants with prejudice. Elizabeth appeals.

DISCUSSION

15A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, 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). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

The burden of proof is on the mover. See La. C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense 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, 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 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); Cason v. Saniford, 13-1825 (La.App. 1 Cir. 6/6/14), 148 So.3d 8, 11, writ denied, 14-1431 (La. 10/24/14), 151 So.3d 602.

In ruling on a motion for summary judgment, the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050. Circumstantial evidence may establish the existence of a genuine issue of material fact to defeat summary judgment. See Ledet v. Robinson Helicopter Co., 15-1218 (La.App. 1 Cir. 4/15/16), 195 So.3d 89, 92, writ denied, 16-00937 (La. 9/6/16), 204 So.3d 1002.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Fonseca v. City Air of Louisiana, LLC, 15-1848 (La.App. 1 Cir. 6/3/16), 196 So.3d 82, 86; Pumphrey v. Harris, 12-0405 (La.App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

Elizabeth asserted tort claims against the Lodge and Cole Properties based upon allegations that the defendants failed to provide her with safe accommodations, more specifically that the subject stool was missing necessary parts, was negligently maintained, and was unreasonably dangerous. She further alleged that the defendants knew or, in the exercise of reasonable care, should have known that the stool was defective. She sought recovery, in part, under Louisiana Civil Code article 2317.1, which provides:

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.

An essential element to a claim under Article 2317.1 is proof that the owner or custodian had actual or constructive knowledge of the defect, meaning the party either knew of the defect or, in the exercise of reasonable care, should have known 17of the defect. See Tomaso v. Home Depot, U.S.A., Inc., 14-1467 (LaApp. 1 Cir. 6/5/15), 174 So.3d 679, 682. The concept of constructive knowledge under Article 2317.1 imposes a reasonable duty on the owner or custodian to discover apparent defects in the thing in his garde. Broussard v. Voorhies, 06-2306 (La.App. 1 Cir. 9/19/07), 970 So.2d 1038, 1045, writ denied, 07-2052 (La. 12/14/07), 970 So.2d 535. The determination of whether an owner or custodian had constructive knowledge of a defective condition is a question of fact. Blevins v. E. Baton Rouge Parish Hous. Auth., 15-0896 (La.App. 1 Cir. 3/22/16), 2016 WL 1135453, 2, writ denied, 16-0602 (La. 5/20/16), 191 So.3d 1068.

The allegations of Elizabeth’s petition also invoke the duty of care owed by an innkeeper to its guests. An innkeeper has a duty to maintain his premises in a reasonably safe and suitable condition, and to warn guests of any hidden or concealed perils that are known or reasonably discoverable by the innkeeper. Pitts v. Felcor Lodging Trust Inc., 09-0249 (La. App. 1 Cir. 9/11/09), 2009 WL 3162050, 2, writ denied, 09-2199 (La. 12/11/09), 23 So.3d 925. To that end, an innkeeper must conduct reasonable inspections of the premises and mechanical equipment. See Gray v. Holiday Inns, Inc., 99-1292 (La.App. 1 Cir. 6/23/00), 762 So.2d 1172, 1175.

Under La. C.C.P. art. 966(C)(2), the Lodge and Cole Properties as the movers were required to point out to the court an absence of factual support for one or more essential elements of Elizabeth’s .claim. They had to show the lack of factual support for her claim that they had actual or constructive knowledge of the defect in the stool. Thereafter, Elizabeth had to produce factual evidence sufficient to establish that she would be able to satisfy her evidentia-ry burden of proof at trial.

|sThe evidence regarding defendants’ knowledge about the stool’s condition consisted primarily of the housekeeping measures undertaken for unit 10 prior to the accident. Employees of the Lodge cleaned the unit, which was frequently leased, before and after each rental by a guest. Generally, if the cleaning staff observed “anything amiss” while cleaning a unit, the matter was documented and reported. No problems were reported for unit 10 prior to the accident. Outside of the cleaning staffs periodic presence in the unit, the only other purported inspection of the unit’s contents occurred about two years before Elizabeth’s accident, at which time two employees of the Lodge evaluated the unit’s interior; however, it was not clear if that evaluation involved any inspection or specific review of the vanity stool.

The trial court concluded that the defendants did not have actual or constructive knowledge of the alleged defect in the chair. In reaching that conclusion, the trial court opined that it was unreasonable for the defendants “to have their employees pick up, turn over, and inspect every piece of furniture to search for defects each time a unit is rented out.” We agree with the trial court that the owner or the non-owner custodian of a rental unit must only exercise reasonable cafe in its investigation or examination of stools, chairs, couches, and other sitting furniture each time a unit is rented. Reasonable care does not require an innkeeper to conduct an intensive inspection or search for missing screws or other parts in chairs or stools after each rental or use, but only to make reasonable inspections to determine if any piece of.furniture is in disrepair or defective. We further note that there were no complaints or observations about the stool by the many people who had rented the unit prior to the plaintiffs. Clearly, any defect in the stool was not known by the defendants prior to the accident. We conclude that the staffs cleaning of the unit before and after each rental and observing the 13general condition of all furniture was sufficient to satisfy the defendants’ obligation to use reasonable care to discover any defects in the furniture in the unit.

The summary dismissal of Elizabeth’s claims is supported by prior jurisprudence from this court, Parsons v. Sholand, LLC, 13-2217 (La.App. 1 Cir. 8/29/14) 2014 WL 4317786, as well as two cases from other circuits, Thompson v. Nelon’s Fast Foods, Inc., 42,825 (La.App. 2 Cir. 1/23/08), 974 So.2d 835, and Bush v. XYZ Ins. Co., 38,867 (La.App. 2 Cir. 8/18/04), 880 So.2d 953. In Parsons, this court affirmed the dismissal of plaintiffs claims on summary judgment where the plaintiff failed to show that defendant knew or should have known of a defect in a collapsed chair in a restaurant, 2014 WL 4317786 at 3-4. The chair collapsed allegedly due to a broken weld between the chair leg and a cross beam. Parsons, 2014 WL 4317786 at 1. In affirming that judgment, this court rejected plaintiffs contention that the defendant had to inspect all points of attachment on the chair for broken welds pursuant to the manufacturer’s instructions, even in a restaurant setting where the use of chairs is extremely frequent. Parsons, 2014 WL 4317786 at 3. A waitress’ deposition testimony established that each week the chairs were wiped by hand, including the legs, and that the restaurant had never experienced a chair collapse before. Parsons, 2014 WL 4317786 at 2-3. The court further noted that there was a lack of evidence that the weld fracture existed prior to the accident or that it would have been visible or discoverable upon mere inspection. Id. Lastly, the court stated that plaintiff failed to introduce any evidence regarding the weight bearing capacity of the chair and that plaintiffs weight made it unlikely that the only plausible reason for the chair’s collapse was the restaurant’s alleged negligence. Parsons, 2014 WL 4317786 at 4. Likewise, in the case at bar, plaintiff did not introduce evidence establishing how much weight the chair could hold.

11flThompson also involved a restaurant chair that collapsed under a patron. 974 So.2d at 836. In affirming a summary judgment in favor of the defendant, the court of appeal found that nothing in the record supported plaintiffs contention that defendants knew or should have known of the chair’s structural problem. Thompson, 974 So.2d at 838. The Second Circuit noted that the records did not show that the restaurant ever had a problem with a chair, that employees moved the chairs and tables as they cleaned the dining area and were told to report any problems with the furniture, and that a weekly detailed cleaning of the dining area was performed with the chairs placed upside down on the tables. Thompson, 974 So.2d at 837.

In Bush, the plaintiff alleged that a chair in a store collapsed. due to a defective weld. 880 So.2d at 954. After a trial, the trial court found in favor of the defendant, and the court of appeal affirmed, rejecting the plaintiffs contention that the store employees should have done a more thorough inspection of the chair to discover defects because screws in the chair’s, armrests came loose “from time to time” and had to be tightened. Bush, 880 So.2d at 955. The court noted that the employees performed what was minimally required of them to make sure the chair was in working order. Bush, 880 So.2d at 955-56.

In each of these cases, the courts rejected the plaintiffs’ contentions that the chairs must be thoroughly inspected to determine if they were defective. Two of these cases involved restaurants where chairs would be used much more than the stool in this condominium.

Moreover, the plaintiff has failed to prove that the accident would not have happened but for the lack of inspection. The plaintiff has the burden of proving when the screws were missing so that a reasonable inspection within a reasonable time would have discovered the missing screws and the accident would not have [^happened. See, e.g., Clark v. J-H-J Inc., 13-0432 (La.App. 1 Cir. 11/1/13), 136 So.3d 815, 817-818, writ denied, 13-2780 (La. 2/14/14), 132 So.3d 964 (in a slip and fall .case applying La. R.S. 9:2800.6(C)); Boutin v. Roman Catholic Church of Diocese of Baton Rouge, 14-313 (La.App. 5 Cir. 10/29/14), 164 So.3d 243, 246-47, writ denied, 14-2495 (La. 2/13/15), 159 So.3d 469.

Considering the evidence before the court, and construing the factual inferences reasonably drawn therefrom in favor of the -opponent of the motions for summary judgment, we find that Elizabeth did not meet her burden of establishing that she could meet her evidentiary burden of proving at trial that defendants had actual or constructive notice of a defect in the stool. Elizabeth’s contention that the trial court erred in granting summary judgment to the defendants on that basis has no merit.

CONCLUSION

The December 30, 2015 judgment, which granted the motions for summary judgment filed by Lodge at the Bluffs Condominium Association, Inc. and James River Insurance Company and by Cole P. Properties, L.L.C. and dismissed Elizabeth Alvarado’s suit, is affirmed. Costs of this appeal are assessed to Elizabeth Alvarado.

AFFIRMED.

W.J.C. dissents for reasons assigned

CRAIN, J.,

dissenting.

|tAs correctly noted by the majority, an innkeeper must conduct reasonable inspections of his premises. However, I disagree with the majority’s conclusion that mere presence for periodic cleaning of the subject condominium unit is sufficient to satisfy the duty to discover defects in the vanity stool. The evidence established that the staff simply cleaned the unit between visits. Under these factual circumstances, the majority’s conclusion is the equivalent of having paying guests rent the unit at their own risk. The duty of an innkeeper requires more.

The cases relied upon by the majority are factually distinguishable from the present case. In Parsons v. Sholand, LLC, 13-2217, 2014 WL 4317786 (La. App. 1 Cir. 8/29/14), each chair was hand-wiped, including the legs, on a weekly basis. The defect in the chair was a weld, not a missing screw. There was no evidence the defect, a weld fracture, existed prior to the accident, or would have been visible or discoverable upon mere inspection. Parsons, 2014 WL 4317786 at 2-3. In Thompson v. Nelon’s Fast Foods, Inc., 42,825 (La.App. 2 Cir. 1/23/08), 974 So.2d 835, the defendant regularly inspected the furniture and conducted weekly, detailed cleanings of the chairs, which involved placing the chairs upside-down on tables. Employees were told to alert a manager if they found something wrong with a chair, and no problems were reported before the incident. Thompson, 974 So.2d at 838. In Bush v. XYZ Insurance Company, 38,867 (La. App. 2 Cir. 8/18/04), 880 So.2d 953, the defendant’s employees routinely checked the chair at [2issue. The defect, a faulty weld, was so obscure that only a metallurgist could have discovered it. Bush, 880 So.2d at 955-56.

In contrast to these cases, which involved regular inspections or cleanings that facilitated identification of discoverable defects, the subject record contains no evidence the vanity stool was ever inspected or cleaned, instead, only “the unit” was generally cleaned. Unlike the faulty welds in Parsons and Bush, the absence of screws connecting the legs to the seat of this vanity stool was readily apparent to both Luis Alvarado and Elizabeth Smith when they looked at the underside of the stool. Whether a reasonable inspection before the subject incident would likely have revealed the missing screws is a question of fact that is not appropriate for resolution by motion for summary judgment.

Considering the evidence before the court, and construing factual inferences reasonably drawn therefrom in favor of the opponent of the motions for summary judgment, Elizabeth Alvarado met her burden of establishing a genuine issue of material fact as to the reasonableness of the defendants’ efforts to discover defects in the vanity stool. Cf. Crooks v. Southwest Louisiana Hospital Association, 12-157 (La.App. 3 Cir. 8/8/12), 97 So.3d 671, 678, writ denied, 12-1982 (La. 11/21/12), 102 So.3d 58 (holding, on review after trial, that if a hospital had exercised reasonable care and inspected the sofa beds in use in its facility, it would have discovered the defect in the subject bed); Walters v. Kenner CiCi’s, 00-1372 (La.App. 5 Cir. 1/23/01), 780 So.2d 467, 469 (holding, on review after trial, that the trial court was not manifestly erroneous in finding that a screw was missing from a chair at the time of the accident and that this defect was discoverable in the exercise of reasonable care).

| a As to custody of the stool, factual issues remain as to which defendant, if not both, had garde of the stool. Ross v. La Coste de Monterville, 502 So.2d 1026, 1029 (La. 1987); Alford v. Home Insurance Company, 96-2430 (La.App. 1 Cir. 11/7/97), 701 So.2d 1375, 1378, writ denied, 97-3029 (La. 2/13/98), 709 So.2d 749.

Finally, the majority’s conclusion that Elizabeth failed to prove that the accident “would not have happened but for the lack of inspection,” expands the scope of this motion for summary judgment. The issue of causation was not raised in the motion. Consequently, the summary judgment cannot be affirmed on that basis. See La. Code Civ. Pro. art. 966F(1); Cedarholley Inv., LLC v. Pitre, 16-0641 (La.App. 1 Cir. 12/22/16), 209 So.3d 850.

      . The petition named "Lodge at the Bluffs, LLC” as a defendant, but in subsequent pleadings filed on its behalf, this defendant appears as the "Lodge at the Bluffs Condominium Association, Inc.” This defendant and its insurer will be collectively referred to herein as “the Lodge.”

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in this case, See Acts 2015, No. 422, §§ 2 and 3.

      . Compare Mayes v. Wausau Underwriters Ins. Co., 12-465 (La.App. 3 Cir. 12/12/12), 104 So.3d 785, 790-91 (affirming summary judgment in favor of a defendant where the evidence did “not indicate that this defect [a faulty weld] could be easily seen, under normal lighting, by turning the chair over”).


author: WHIPPLE, C.J. GUIDRY, J.,

text:
    William FOSTER, Jr. v. Carol KINCHEN, Jason Wells and Farm Bureau Insurance Company
    NUMBER 2016 CA 0544
    Court of Appeal of Louisiana, First Circuit.
    MARCH 29, 2017

      Charles M. Thomas, Logan Schonekas Albertine, New Orleans, LA, Counsel for Plaintiff/Appellant, William Foster, Jr.
    Craig Robichaux, Mandeville, LA, Counsel for Defendants/Appellees, Carol Kin-chen, Jason Wells, Farm, Bureau Insurance, Louisiana Farm, Bureau Casualty Insurance Company
    BEFORE: WHIPPLE, C.J., GUIDRY, McClendon, welch, and THERIOT, JJ.
   WHIPPLE, C.J.

12This matter is before us on appeal by plaintiff, William Foster, Jr., from a judgment of the trial court granting a motion for summary judgment filed by defendants, Carol Kinchen and Louisiana Farm Bureau Insurance Company (“Farm Bureau”). For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

According to the petition filed herein, on May 8, 2014, plaintiff was operating his bicycle in a westbound direction on the sidewalk of Pine Street in Ponchatoula when, while crossing the intersection of Pine and South 5th Streets, he was struck in the crosswalk by a 2007 Toyota Sequoia, owned by Jason Wells and driven by Carol Kinchen. Kinchen was turning left or southbound onto South 5 th Street, at the intersection of Pine and South 5th Streets, when the accident occurred.

After the accident, plaintiff was taken to North Oaks Medical Center for evaluation. The treating hospital records indicated that plaintiff was treated for abrasions on his arms and that his blood work revealed a blood alcohol content of 0.084% at the time of the accident.

As a result of the accident, plaintiff filed a petition for damages on August 15, 2015, against Kinchen, Wells, and Farm Bureau, alleging therein that the accident was caused by Kinchen’s negligence. On December 7, 2015, Kinchen and Farm Bureau filed a motion for summary judgment, contending that plaintiff was precluded from recovering damages from the accident as LSA-R.S. 9:2798.4 provided them with statutory immunity from liability as a result of plaintiffs intoxication.

Following a hearing on January 4, 2016, the trial court rendered judgment granting the motion for summary judgment and dismissing plaintiffs suit against defendants with prejudice, at plaintiffs costs, on February 1, 2016. It is from this judgment that plaintiff now appeals, contending that the trial court improperly [¡¡applied LSA-R.S. 9:2798.4 herein, where plaintiff was riding a bicycle and was not operating a “motor vehicle” as required by the statute for the immunity to apply. Plaintiff further contends that in applying the statute, the trial court improperly made factual determinations regarding causation and allocation of fault in a summary judgment proceeding.

DISCUSSION

At the outset, we must determine whether this matter is properly before us on appeal. The trial court designated the February 1, 2016 judgment as a final judgment pursuant to LSA-C.C.P. art. 1915(A)(3). Moreover, while the judgment dismissed plaintiffs suit as to Kinchen and Farm Bureau, Jason Wells, who was named as a defendant in the petition and answered same, was not dismissed as a defendant therein. Louisiana Code of Civil Procedure article 1915(A)(1) provides that a judgment that “[dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors” is a final appealable judgment. Thus, we conclude the judgment is also final for purposes of an immediate appeal, pursuant to LSA-C.C.P. art. 1915(A)(1), because the judgment dismisses the suit as to less than all of the defendants. See Herrera v. First National Insurance Company of America, 2015-1097 (La.App. 1 Cir. 6/3/16), 194 So.3d 807, 811, writ denied, 2016-1278 (La. 10/28/16), 208 So,3d 885.”

^SUMMARY JUDGMENT

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, 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. LSA-C.C.P. art. 966(B)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Willig v. Pinnacle Entertainment, Inc., 2015-1998 (La.App. 1 Cir. 9/16/16), 202 So.3d 1169, 1172-1173. Whether a particular fact in dispute is material for purposes of summary judgment can be seen only in light of the substantive law applicable to the case. Gaspard v. Graves, 2005-1042 (La.App. 1 Cir. 3/29/06), 934 So.2d 158, 160, writs denied, 2006-0882, 20060958 (La. 6/16/06), 929 So.2d 1286, 1289.

On appeal, plaintiff contends that where he undisputedly was riding a bicycle at the time of the accident, the trial court erred in granting summary judgment pursuant to the immunity provision of LSA-R.S. 9:2798.4, which provides immunity to others for damages or injuries suffered by persons operating a motor vehicle, aircraft, watercraft, or vessel while under the influence of alcohol or drugs, and such negligence was a contributing cause of the accident. We agree with plaintiff that this appeal requires the resolution of a narrow legal issue: whether a “bicycle” constitutes a “motor vehicle” or “vessel” under the statute.

Pursuant to LSA-R.S. 9:2798.4:
A. Neither the state, a state agency, or a political subdivision of the state nor any person shall be liable for damages, including those |savallable under Civil Code Article 2315.1 or 2315.2, for injury, death, or loss of the operator of a motor vehicle, aircraft, watercraft, or vessel who:
(1) Was operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration of 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or
(2) Was operating a motor vehicle, aircraft, watercraft, or vessel while he was under the influence of any controlled dangerous substance described in R.S. 14:98(A)(l)(c) or R.S. 40:964.
B. The provisions of this Section shall not apply unless:
(1) The operator is found to be in excess of twenty-five percent negligent as a result of a blood alcohol concentration in excess of the limits provided in R.S. 14:98(A)(l)(b), or the operator is found to be in excess of twenty-five percent negligent as a result of being under the influence of a controlled dangerous substance described in R.S. 14:98(A)(l)(c); and
(2) This negligence was a contributing factor causing the damage.
C. For purposes of this Section, “damages” include all general damages, including those otherwise recoverable in a survival or wrongful death action, which may be recoverable for personal injury, death or loss, or damage to property by the operator of a motor vehicle, aircraft, watercraft, or vessel or the category of persons who would have a cause of action for the operator’s wrongful death.
D. The provisions of this Section shall not apply if the operator tests positive for any controlled dangerous substance covered by the provisions of R.S. 14:98(A)(l)(c) or R.S. 40:964 and the operator is taking that substance pursuant to a valid prescription for the identified substance or a health care provider verifies that he has prescribed or furnished the operator with that particular substance.
E. Unless the operator’s insurance policy provides otherwise, nothing in this Section shall be construed to preclude the operator from making a claim under his or her own policy for first party indemnity coverages.

The starting point for the interpretation of a statute is the language of the statute itself. When a statute is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. LSA-R.S. 1:4; Crowe v. Bio-Medical Application of Louisiana, LLC, 2014-0917, 2014-0918 (La. App. 1st Cir. 6/3/16), 208 So. 3d 473, 487 (citing Cat’s Meow, Inc. v. City of New Orleans Through Department of Finance, 98-0601 (La. 10/20/98), 720 So.2d 1186, 1198).

We rely on secondary rules of statutory interpretation to discern the meaning of a statute only when a statute is not clear and unambiguous, or its application leads to absurd consequences. And in such cases, the statute nonetheless must be interpreted to have the meaning that best conforms to the purpose of the law. Pierce Foundations, Inc. v. Jaroy Construction, Inc., 2015-0785 (La. 5/3/16), 190 So.3d 298, 303.

On appeal, Kinchen and Farm Bureau refer to various other statutes to attempt to liken a “bicycle” to a “motor vehicle.” In particular, they contend that where LSA-R.S. 32:194 provides “[e]very person riding a bicycle upon a highway of this state shall be granted all of the rights and shall be subject to all the duties applicable to the driver of a vehicle by this Chapter,” there concomitantly “should be no difference between bicycle and motor vehicles under the law” and LSA-R.S. 9:2798.4 should apply herein.

As further support for their argument that a “bicycle” fits within the purview of a “motor vehicle” herein, they note that a bicycle is included in the definition of a “vehicle” as defined in LSA-R.S. 32:1(92), as follows:

“Vehicle” means every device by which persons or things may be transported upon a public highway or bridge, except devices moved by human power or used exclusively upon stationary rails or tracks. A bicycle or a ridden animal shall be a vehicle, and a trailer or semitrailer shall be a separate vehicle.

(Emphasis added.)

We are not persuaded by these arguments. Although a bicycle and ridden animal are included in the definition of a “vehicle,” we note that the immunity set forth in LSA-R.S. 9:2798.4 applies to the operation of a “motor vehicle.” Louisiana Revised Statute 32:1(40) defines a “motor vehicle” as:

17[E]very vehicle which is self-propelled, and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, but excluding a motorized bicycle. “Motor vehicle” shall also include a “low-speed vehicle” which is a four-wheeled, electric-powered vehicle with a maximum speed of not less than twenty miles per hour but not more than twenty-five miles per hour and is equipped with the minimum motor vehicle equipment appropriate for vehicle safety as required in 49 C.F.R. 571.500.

(Emphasis added.)

The definition of a motor vehicle in LSA-R.S. 32:1(40) encompasses self and electric propelled vehicles. Notably, a bicycle is not included in the definition of a “motor vehicle.” In fact, a “motorized bicycle,” which is presumably self or electric propelled, is specifically excluded from the definition of a “motor vehicle.”

The language of LSA-R.S. 9:2798.4 provides that “no person shall be liable for damages ... of the operator of a motor vehicle, aircraft, watercraft, or vessel who [w]as operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration [was] 0.08 percent or more.” The language of the statute is clear and unambiguous as written. Thus, we may not read into the statute a definition that the legislature did not include. See LSA-C.C. art. 9; J. Reed Constructors, Inc. v. Roofing Supply Group, L.L.C., 2012-2136 (La.App. 1 Cir. 11/1/13), 135 So.3d 752, 756, writ denied, 2014-1031 (La. 9/12/14), 148 So.3d 931. While LSA-R.S. 9:2798.4 applies to operators of a “motor vehicle, aircraft, watercraft, or vessel,” by its very terms, the immunity afforded therein does not apply to the operators of a bicycle.

Accordingly, the trial court erred in granting the motion for summary judgment filed by Kinchen and Farm Bureau.

CONCLUSION

For the above and foregoing reasons, the February 1, 2016 judgment of the trial court, granting the motion for summary judgment filed by Kinchen and Farm |RBureau and dismissing plaintiffs claims, is hereby reversed. The matter is remanded to the trial court for further proceedings.

Costs of this appeal are assessed to the defendants/appellees, Carol Kinchen and Louisiana Farm Bureau Insurance Company.

REVERSED AND REMANDED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

|!Although the majority finds the judgment appealed to be a final judgment, I disagree with that conclusion. The judgment appealed contradictorily recites that the matter came before the trial court as a ruling on a motion for summary judgment filed by only two of the three named defendants, namely Carol Kinchen and Louisiana Farm Bureau Casualty Insurance Company, but then in the judgment decree it is stated:

IT IS ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed by the Defendants be and the same is hereby granted, and accordingly Plaintiffs suit against the Defendants is hereby dismissed with prejudice at the plaintiffs costs. [Emphasis added.]

Hence, by the plain language of the decree, the trial court dismissed the plaintiffs claims against all three of the named defendants, which would include Jason Wells. The majority, however, interprets this same language to find that the trial court only dismissed Kinchen and Farm Bureau. These contrary interpretations of the decree plainly support a finding that the judgment is ambiguous and therefore defective. As such, I do not believe that the judgment is a final judgment over | ¡.which this court should exercise appellate jurisdiction. See Davis v. Farm Fresh Food Supplier, 02-1401, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 352, 353; Laird v. St. Tammany Parish Safe Harbor, 02-0045, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 364, 365. Hence, I believe the appeal should be dismissed, and to the extent the majority determines otherwise, I respectfully dissent.

      . Under LSA-C.C.P. art. 1915(A)(3) a judgment that "[girante a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E)[,]” is a final appealable judgment. Further, a summary judgment rendered pursuant to LSA-C.C.P. art. 966(E) is a summary judgment that disposes of "a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties.”

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3.