author: EZELL, Judge.

text:
    Demetric TANNER v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT
    CA 18-900
    Court of Appeal of Louisiana, Third Circuit.
    May 22, 2019
    Robert A. Mahtook, Jr., Mahtook & LaFleur, L.L.C., P. O. Box 3089, Lafayette, LA 70502-3089, (337) 266-2189, COUNSEL FOR DEFENDANT/APPELLEE: Lafayette City-Parish Consolidated Government
    Justin T. Morales, The Townsley Law Firm, 3102 Enterprise Blvd, Lake Charles, LA 70601, (337) 478-1400, COUNSEL FOR PLAINTIFF/APPELLANT: Demetric Tanner
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   EZELL, Judge.

Demetric Tanner appeals a trial court judgment granting summary judgment in favor of the Lafayette Consolidated Government (LCG) and dismissing her case. Ms. Tanner alleges that there are genuine issues of material fact as to whether the LCG had knowledge of a dangerous condition of one of its manhole covers.

FACTS

On September 9, 2015, Ms. Tanner was going to the Legacy Bar on Jefferson Street in Lafayette, Louisiana. She forgot her driver's license, so she and a friend went back to her car to get it. She saw a friend across the street and proceeded to go to talk to the friend. The friend walking across the street with her was on her left and slightly behind her. According to Ms. Tanner's deposition, she took a couple of steps into the street. Ms. Tanner claims she stepped on a manhole cover and it popped up, hitting her ankle and leg, at which time her leg went in the manhole. As a result of the incident, she alleges she injured her knee and other body parts. Ms. Tanner stated that her friend said the manhole cover was flat before the accident.

Ms. Tanner filed suit against the LCG on July 8, 2016. Subsequently, the LCG filed a motion for summary judgment. A hearing on the motion was held on September 10, 2018. Following the hearing, the trial court ruled that the LCG did not have actual or constructive knowledge of any defects with the manhole cover. Judgment was signed on September 17, 2018, dismissing Ms. Tanner's claims against the LCG. Ms. Tanner then filed the present appeal.

SUMMARY JUDGMENT

On appeal, Ms. Tanner alleges the trial court erred in granting summary judgment in favor of the LCG. She argues there are genuine issues of material fact concerning the LCG's knowledge of a dangerous condition.

The summary judgment procedure is favored and "designed to secure the just, speedy, and inexpensive determination of every action[.]" La.Code Civ.P. art. 966(A)(2). Appellate courts review the grant or denial of a motion for summary judgment de novo, "using the same criteria that govern the trial court's determination of whether summary judgment is appropriate., i.e. , whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Samaha v. Rau , 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 882-83 ; La.Code Civ.P. art. 966(A)(3).

The moving party has the burden of proof unless the mover "will not bear the burden of proof at trial on the issues that is before the court on the motion for summary judgment." La.Code Civ.P. art. 966(D)(1). In that case, the mover need only "point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. "The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

Louisiana Revised Statutes 9:2800(C), regarding a claim against a public entity for damages caused by things in its care and custody, provides, in pertinent part:

[N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entitled for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

In order to establish liability under La.R.S. 9:2800, the supreme court has held that a plaintiff must prove: "(1) custody or ownership of the defective thing by the public entity; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation." Chambers v. Village of Moreauville , 11-898, p. 5 (La. 1/24/12), 85 So.3d 593, 597. The failure to establish any one of the elements will defeat a claim under La.R.S. 9:2800 against a public entity. Walters v. City of W. Monroe , 49,502 (La.App. 2 Cir. 2/4/15), 162 So.3d 419, writ denied , 15-440 (La. 5/15/15), 170 So.3d 161.

Constructive notice is defined as "the existence of facts which infer actual knowledge." La.R.S. 9:2800(D).

Ms. Tanner argues that this manhole cover should have been secured or bolted down because it was in a vehicle's wheel path. She argues that the LCG is presumed to have knowledge of this defect since this condition has existed for over twenty years.

This court has held that a public entity is deemed to have constructive notice of a defect when the defect has existed for such a period of time that the public entity should have discovered it by the exercise of ordinary care and had the opportunity to protect the public from injury by fixing the defect. Scott v. Lafayette Consol. Gov't-Risk Mgmt. Div. , 10-716 (La.App. 3 Cir. 12/8/10), 52 So.3d 1068.

Pursuant to La.Code Civ.P. art. 1442, depositions of Mitchell P. Wyble, the Public Works Civil Engineering Supervisor, project control for the LCG, and Eddie Wiltz, Project Coordinator for the LCG, were taken. Excerpts from these depositions were introduced by the LCG in support of its motion for summary judgment.

The LCG does not deny that it owns the manhole cover involved in this case. Mr. Wyble, an employee with the LCG for thirty-two-and-a-half years, explained that his department would pick and choose the manhole covers depending on the application it would be used for. This cover was installed in the early to mid-1990s when Jefferson Street was reconstructed. The cover is in an area off the street in a corner by the driveway entrance to a parking lot and next to a fire hydrant. It is a standard manhole cover without vents. The cast-iron cover weighs 120 pounds and requires a special tool similar to a crowbar to lift it. There is no mechanism to keep the cover in place except the weight of the cover. Mr. Wyble stated that a locking mechanism on a manhole cover may be necessary if it is in the wheel path of a vehicle. However, the LCG has no policy of placing locking mechanisms on manhole covers. The LCG tries to keep manholes off travel lanes and out to the edge because it does not want someone working in a manhole in the path of a vehicle.

Mr. Wyble explained that water from the street does not enter the manhole but there are lines running under the manhole cover which drains the water. He stated that rainwater collected in the adjacent parking lot drains into lines running under the manhole cover. Mr. Wyble has seen a manhole cover get out of place before and agreed that excessive water in the street could lift a manhole cover, but he never saw a manhole cover in Lafayette lifted by water pressure. He also stated that not enough water gets into the basin to require ventilation. As explained by Mr. Wyble, the LCG does not inspect or maintain manhole covers unless a problem has been reported. There is also no policy in place for the LCG employees to report a dangerous condition, but they will report an issue if they see something.

Mr. Wiltz agreed that the LCG only inspects manholes if it receives a request due to a citizen's concern and there is no procedure in place to see if covers are sitting flush in the frame. He agreed that other employees would report a cover that is not flush in the frame. Mr. Wiltz was not aware of any reports of a cover not sitting flush in the frame. Mr. Wiltz's supervisor notified him of this accident, and he went to check it out a day or two later, but found nothing wrong with the cover. The frame was intact, and there were no breaks or cracks in the cover. There was no water in the drain. If an LCG employee accessed the manhole, there would be an express written order on file. There was none. Mr. Wiltz explained that private contractors are supposed to get permission from the LCG to assess the manhole, but they don't always.

In opposition to the motion for summary judgment, Ms. Tanner introduced the affidavit of Jason T. English, a professional engineering consultant from Texas. He stated that "[a]bsent of intended removal of the lid with a special tool, the most likely causes for a manhole lid to become displaced are vehicular traffic, internal pressure due to liquid or gas, or damage to the frame due to deterioration, shifting of the ground, or adjacent construction activities." Mr. English was critical of the LCG for failing to establish and implement an adequate safety inspection and maintenance program for manholes located in public walkways and streets. He also criticized the failure of the LCG to install a vented manhole lid and failure to install a secured lid. He opined that the lid was in the potential wheel path of traffic. Mr. English never examined the manhole cover.

We first observe that the LCG's failure to have a plan for periodic inspections does not impute constructive notice. See Scott , 52 So.3d 1068 ; Jones v. Hawkins , 98-1259, 98-1288 (La. 3/19/99), 731 So.2d 216. Furthermore, there is no evidence that the lid in question was lifted by water pressure. To the contrary, evidence indicated that there had never been a manhole cover displaced by water pressure in Lafayette. Pictures of the manhole cover attached to the depositions of Mr. Wyble and Mr. Wiltz clearly show that it is not in the wheel path of traffic, but in a corner of a raised curb, next to a driveway and fire hydrant, and out of the lane of travel. Furthermore, pursuant to La.R.S. 32:143, no person shall park a vehicle within fifteen feet of a fire hydrant or in front of a public or private driveway, so that pursuant to the law, there should be no vehicles in this area. Additionally, there was never a report before this accident of the manhole cover being displaced. Following a report of this accident, Mr. Wiltz checked out the manhole cover and found no issues.

We agree with the trial court that the LCG was entitled to summary judgment dismissing Ms. Tanner's case, as there is no genuine issue of material fact that the LCG did not have actual or constructive notice of any problems with this manhole cover.

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Demetric Tanner.

AFFIRMED.

Cooks, J., dissents and assigns written reasons.

Attachment COOKS, J. dissent.

The majority affirms the trial court's granting summary judgment applying the provisions of La.R.S. 9:2800 because, it says, "there is no genuine issue of material fact that the LCG did not have actual or constructive notice of any problems with this manhole cover" as required by La.R.S. 9:2800. The provisions of La.R.S. 9:2800 are not applicable to this case because Plaintiff did not choose to pursue her claim under La. Civ.Code art. 2317 or 2317.1. Plaintiff's petition includes only allegations of general negligence under La. Civ.Code art. 2315. Louisiana Revised Statutes 9:2800 (emphasis added) expressly applies only to claims brought under La.C.C. arts. 2317 and 2317.1 :

Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

In Clarkston v. Louisiana Farm Bureau Cas. Ins. Co. , 07-158 pp. 21-22, (La.App. 4 Cir. 7/2/08), 989 So.2d 164, 180-81, writ denied , 08-1768 (La. 10/31/08), 994 So.2d 539 (emphasis added) the fourth circuit upheld the trial court's denial of a motion for directed verdict that defendants therein premised on the plaintiffs' failure to sustain the burden of proof on notice under the provisions of La.R.S. 9:2800 :

In addressing this matter, we recognize the law is clear, whether one seeks a cause of action under strict liability or La.Code Civ. art. 2315 negligence, the legal analysis is essentially the same. The primary distinction is that, under strict liability, the plaintiff does not have to prove the owner or custodian of the thing which caused the damage knew or should have known of the potential risk involved. Campbell v. La. Dept. of Transp. & Development, 94-1052 (La. 1/17/95), 648 So.2d 898, 901. However, under La. R.S. 9:2800, a plaintiff's burden is modified when pursuing a strict liability claim against a public entity (i.e., the DOTD) insofar as the plaintiff must prove "... the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the deficiency and failed to do so." La. R.S. 9:2800. While we question the DOTD's assertion that the Clarkstons failed to prove it had actual or constructive notice of a defect in the roadway where the accident took place and failed to remedy such, we nevertheless find the Clarkstons did not have to sustain such a burden. Surprisingly, the Clarkstons did not assert a cause of action under strict liability in its original or amended petitions. As such, La. R.S. 9:2800 is inapplicable. Therefore, we find no error in the trial court's denial of the motion for directed verdict.

The same is true here. The City's motion for summary judgment, the trial court ruling granting the motion, and the majority's affirmance are premised on the application of the notice requirement in La.R.S. 9:2800 and recovery under La.C.C. art. 2317.1. Nothing in Plaintiff's petition makes any claim or reference to strict liability. This court has recognized a plaintiff's right to "premise[ its] right to recover on the legal theories of negligence and strict liability" under either Article 2315 and/or Article 2317 and 2317.1. Petre v. State ex rel. Dep't of Transp. & Dev. , 00-545 (La.App. 3 Cir. 12/29/00), 775 So.2d 1252, 1258, writ granted , 01876 (La. 6/1/01), 793 So.2d 171, affirmed, 01-876 (La. 4/3/02), 817 So.2d 1107. Likewise the Louisiana State Supreme Court has recognized that a public body's liability "may arise under a theory of negligence, La. Civ.Code art. 2315, or a theory of strict liability, La.Civ.Code art. 2317." Campbell v. Louisiana Dep't of Transp. & Dev. , 94-1052 (La. 1/17/95), 648 So.2d 898, 901.

Plaintiff alleges only Article 2315 general negligence claims against the City setting forth in its petition as follows:

The above described accident and resulting injuries to Plaintiff, DEMETRIC TANNER, were caused through the sole fault and proximate fault and negligence of defendant, LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, in the following non-exclusive ways:
A) Failure to maintain the roadway and/or premises in a safe condition;
B) Failure to inspect the roadway and/or premises to insure against unsafe conditions;
C) Failure to warn pedestrians of unsafe conditions on the roadway and/or premises;
D) Failure to properly patrol and supervise the roadway and/or premises;
E) Allowing the premises to become dangerous without taking precautions to ensure the safety of pedestrians walking on the roadway and/or premises;
F) Failure to properly close and maintain manholes located on the roadway and/or premises; and
G) Any other acts of negligence known only to defendant which may be found during discovery proceedings and which may be proved at trial of this cause.

Therefore, for this reason alone, the trial court's grant of summary judgment must be reversed because of legal error. But even if this were not the case, the trial court judgment must be reversed because of other legal errors, i.e. there are general issues of material fact regarding constructive notice. The majority says that LCG's "failure to have a plan for periodic inspections does not impute constructive notice," citing the supreme court's decision in Jones v. Hawkins , 98-1259 (La. 3/19/99), 731 So.3d 216. While it is true that our courts have held that constructive notice cannot be imputed to a public entity solely because it does not have a plan for inspection and maintenance, our courts have not held that a public entity meets its duty to maintain its streets and sidewalks in a reasonably safe condition by doing absolutely nothing for twenty-three years. Although the City is not required to have a plan for inspection and maintenance of its streets and sidewalks it nevertheless "cannot sit back and ignore [ ] dangers posed" even when those dangers are not situated on the City's property, let alone when they are so located. See, Irion v. State ex rel. Dep't of Transp. & Dev. , 98-2616 p. 9, (La. App. 1 Cir. 5/12/00), 760 So.2d 1220, 1228, writ denied , 00-2365 (La. 11/13/00), 773 So.2d 727. The second circuit in Irion recognized that the Louisiana Department of Transportation and Development's (DOTD) duty to keep the public highways in a "reasonably safe condition for persons exercising ordinary care and reasonable prudence" Id. , includes the obligation to look for situations that "may endanger the safety of motorists" even if such "conditions are off of the right -of-way." Id. Thus, the City may choose not to implement a plan for maintaining its streets and sidewalks, but it cannot choose to do absolutely nothing and thereby maintain it is meeting its duty by equating its voluntary ignorance of dangerous conditions to lack of notice. The City must exercise reasonable care, and when it fails to do so and thereby fails to discover what it could easily discover in the exercise of reasonable care, it is deemed to have notice of unreasonably dangerous conditions. Id. "While DOTD cannot be imputed with knowledge of every defect on its roadways and shoulders, neither can DOTD escape liability by negligently failing to discover that which is easily discoverable . Brown v. La. Indem. Co., 97-1344, p. 8 (La. 3/4/98), 707 So.2d 1240, 1244." Hager v. State, ex rel. Dep't of Transp. & Dev. , 06-1557 p. (La. App. 1 Cir. 1/16/08), 978 So.2d 454, 467-68, writ denied , 08-347 (La. 4/18/08), 978 So.2d 349, and writ denied , 08-385 (La. 4/18/08), 978 So.2d 349. See also, Falcon v. Louisiana Dep't of Transp. , 13-1404 (La.App. 1 Cir. 12/19/14), 168 So.3d 476, writ denied , 15-133 (La. 4/10/15), 163 So.3d 813.

There is yet another genuine issue of material fact regarding actual or constructive notice. According to Plaintiff's expert witness, the City created the unreasonably dangerous, defective condition. In Raymond v. Government Employees Ins. Co. , 09-1327, pp. 5-7 (La.App. 3 Cir. 6/2/10), 40 So.3d 1179, 1185-87, writ denied , 10-1569 (La. 10/8/10), 46 So.3d 1268 (emphasis added), this court found that when a public body makes a decision to do or not to do something which later proves to have created an unreasonably dangerous condition plaintiff does not need to prove notice:

The Plaintiffs' main contention at trial was that the area where Mr. Raymond was killed was defective for the failure to include a no-passing zone pennant sign. The DOTD argues that the trial court erred in refusing to require the Plaintiffs to prove notice of a defect as required by La.R.S. 9:2800 and in failing to instruct the jury of such requirement. The Plaintiffs argue that they were not required to prove notice because the DOTD created the dangerous condition and is charged with knowledge of that condition.
....
In Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289, 293 (La.1993), the supreme court, in analogizing a public body's duty regarding a gate on a canal, discussed the element of knowledge as follows:
The court of appeal erroneously determined, however, that the parish had no duty to provide warnings in this instance because it was not proved that the parish had knowledge of any danger presented by the gate and its manner of operation. Cited as authority were cases where defects developed after construction of the facility, such as where a sign had been removed or where a defect developed over a period of time. These cases and their requirement of knowledge are not applicable where the need to provide warnings arises from a danger inherent in the design and construction of the facility. A public body charged with maintaining a public route cannot claim lack of knowledge of the need to provide warnings where the danger is obvious and inherent in the design and construction of the facility. A public body is held to know of the danger of an unmarked intersection, or a sharp curve, or a draw bridge, or, as in this case, a gate that raises and lowers automatically so as to block a canal used by boat operators. Likewise, the public authority must provide adequate warnings of unusual obstructions or perilous conditions so as to make the route reasonably safe for those traveling on it.
In Whatley v. City of Winnfield, 35,132 (La.App. 2 Cir. 12/5/01), 802 So.2d 983, writ denied, 02-510 (La. 3/22/02), 811 So.2d 939, the second circuit recognized that the requirement of notice to a public body is inapplicable to a case where the dangerous condition was attributable to the public body or its employees . Notice is only required when the defective condition is not caused by the public body's own act or negligence.
In Johnson v. State ex rel. DOTD, 06-898 (La.App. 3 Cir. 12/13/06), 946 So.2d 682, writ denied, 07-510 (La. 4/27/07), 955 So.2d 693, this court followed the reasoning of Whatley and found that the DOTD was not entitled to notice of defective signage that it created. A stop sign at an intersection in a construction zone had been obscured from view by detour signs.
Furthermore, in Rogers v. State ex rel. DOTD, 02-809 (La.App. 3 Cir. 2/5/03), 838 So.2d 849, writ denied, 03-668 (La. 5/2/03), 842 So.2d 1107, this court held that the DOTD had actual knowledge of the dangerous condition created by changing a fixed light to a flashing red light at the intersection. We found that the DOTD was aware of the special dangers that the intersection presented due to the skewed angle design and the high speeds of those traveling in the area.
As the DOTD has argued, both at the trial court level and to this court, the decision of whether to place a no-passing zone pennant sign was at the discretion of its engineers. There is no need to prove notice when the DOTD makes the decision not to use a particular sign.

Plaintiff's expert, Jason T. English (English), opines that the manhole cover in this case should have either been bolted down or tack welded to avoid its coming loose through various occurrences, and it should also be vented to avoid becoming dislodged by water or gas pressure. The majority says "[Mr. Wyble] never saw a manhole cover in Lafayette lifted by water pressure." But that is not an accurate recounting of the deposition testimony. Mitchell P. Wolfe (Wolfe), the Public Works Engineering Supervisor for the City, testified in his deposition that he "was not aware" of any "City of Lafayette manhole cover" being "lifted from water pressure" but he had seen DOTD manhole covers lifted in the City of Lafayette by water pressure. He further stated in his deposition testimony:

A. This manhole cover has no vents.
Q. Can these manhole covers come out of place by any reason, other than someone actually lifting it?
A. Yes, they have. I've seen manhole covers get out of place before.
Q. And what things can cause it to come out of place?
A. Hydraulics, water. Excessive amount of water.
Q. What do you mean "hydraulics"?
A. The force of the water due to inundation of the street will sometimes policy and procedure (sic) the lid up."

Wolfe also testified in his deposition that when a manhole cover is in the path of vehicles it should be bolted down or tack welded in place. He says the cover here, in his layman's opinion, is not in the wheel path of vehicles, but he is not a qualified expert. Moreover, his reference to the cover being "in the wheel path of a vehicle" seems to refer to the traveling path of a vehicle on the street. Nevertheless, when pressed in his deposition he admits that vehicles may indeed pass over this manhole cover. English seems to consider the cover being "in the wheel path of a vehicle" to include location of the manhole cover where vehicles can roll over the cover. We are not in any position on summary judgment to make the determination of what "in the wheel path" means, nor can we reconcile the competing testimony without weighing evidence. English states that this cover is in a wheel path and should be bolted down or tack welded to avoid becoming dislodged . Moreover, English further stated in his affidavit, offered in opposition to the motion for summary judgment states (emphasis added):

LCG failed to install a secured lid, or secure the existing lid. Manhole lids/frames are readily available in a bolted design that allows the lid to be bolted to the frame to secure the lid from potential displacement. In fact, according to the testimony of the LCG representatives, manholes in their jurisdiction located in vehicular wheel paths are supposed to be a secured or bolted design. The manhole in this matter is located on the north side of Jefferson Street, in the potential wheel path of vehicles entering the adjacent parking lot from the street, or potential parking vehicles, especially temporary delivery trucks for the adjacent businesses. In this regard, a manhole lid for the underground sewer system within 20 yards of the manhole in this matter is a bolted secured design, with numerous other bolted manhole lids along Jefferson street in this area. LCG failed to comply with their own policy regarding the installation of secured manhole lids in potential vehicular wheel paths.

The majority says that a photo of the manhole cover "clearly show[s] that it is not in the wheel path of traffic, but in a corner of a raised curb, next to a driveway and fire hydrant, and out of the lane of travel. Furthermore, pursuant to La.R.S. 32:143, no person shall park a vehicle within fifteen feet of a fire hydrant or in front of a public or private driveway, so pursuant to the law, there should be no vehicles in this area." This weighing of evidence and speculation by the majority is entirely inappropriate on summary judgment. It is at odds with the expert witness's testimony, and it is at odds with Wolfe's testimony for even he acknowledges "there's always [the] possibility" a vehicle could travel over this manhole cover. He clearly testified, as recounted by English in his affidavit, that if the cover is in a wheel path "you would want to put a bolt down or lock it" and "if we, Lafayette Consolidated Government, where going to have a manhole that had to be in the wheel path, we would require it to be a bolt-down." He also testified:

Q. And on the day of this incident, did the City of Lafayette have anything to block or prevent a car from traveling on top of this manhole cover?"
A. Not that I'm aware of.
Q. Is there any ordinance or law preventing a car from traveling on top of this manhole cover?
A. No.

The question of whether this manhole cover is in a wheel path where vehicles can roll over it is a disputed genuine issue of material fact that cannot be resolved on summary judgment .

Summary judgment is not appropriate in situations involving issues of credibility. Smith v. Lynn, 32,093 (La.App.2d Cir.8/18/99), 749 So.2d 692.
On a motion for summary judgment, the district court must ask not whether the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff upon the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Two Feathers Enterprises, Inc. v. First Nat'l Bank of Commerce, 98-0465 (La.App. 4th Cir.10/14/98), 720 So.2d 398....
After reviewing the testimony, we conclude that the plaintiff produced sufficient evidence to support a trier of fact's finding that more probably than not the city employee's negligence created the hazardous condition of the unlocked meter cover. Based upon this record, the City failed to satisfy its burden of demonstrating the absence of a genuine issue of material fact. Consequently, the district court erred in granting the motion for summary judgment. Accordingly, we shall reverse the judgment and remand this case for further proceedings.

Whatley v. City of Winnfield , 35,132, pp. 7-8 (La. App. 2 Cir. 12/5/01), 802 So.2d 983, 986-87, writ denied , 02-0015 (La. 3/22/02), 811 So. 2d 939.

If the Plaintiff proves to the jury's satisfaction that this manhole cover should have been secured in place, then the City's failure to do so from the time it was installed means the City created the unreasonably dangerous condition and thus it is presumed to have knowledge of the hazardous condition. "When the public entity creates the defective condition by its own substandard conduct, it is presumed to have knowledge of the hazardous condition. Whatley v. City of Winnfield , 35,132 (La.App. 2 Cir. 12/5/01), 802 So.2d 983, 986, writ denied , 02-0015 (La. 3/22/02), 811 So.2d 939 ; see also Falcon v. La. Dep't of Transp. , 13-1404 (La.App. 1 Cir. 12/19/14), 168 So.3d 476, 485, writ denied , 15-0133 (La. 4/10/15), 163 So.3d 813."

Barnett v. City of Baton Rouge , 16-222 (La.App. 1 Cir. 10/31/16), 206 So.3d 904, 908, writ denied , 16-2142 (La. 1/13/17), 215 So.3d 256. In Barnett , 206 So.3d at 908 (emphasis added), the first circuit found the plaintiff, through its expert witness, had set forth a disputed genuine issue of material fact that could not be resolved on summary judgment regarding whether the City-Parish created the defect:

In response, Mr. Barnett argues that he is not required to prove notice, because the City-Parish created the dangerous condition and is charged with knowledge of that condition. Specifically, in his report, Mr. Blanchard noted that the school zone traffic control sign failed due to cyclical loading for which it was not designed. Mr. Blanchard opined that the City-Parish was negligent in purchasing and installing the subject fixture given the wind loads of the Baton Rouge area.
The City-Parish has not addressed the assertions made in Mr. Blanchard's report that the sign selected was not sufficient to withstand the Baton Rouge area storm and wind conditions and Mr. Barnett's argument that the City therefore created the defect. Mr. Blanchard's report creates a genuine issue of material fact regarding whether the City-Parish created the defective condition by its own substandard conduct in selecting and installing a potentially deficient sign in the Baton Rouge area. If established, under the current jurisprudence, either actual or constructive notice need not be proven or such knowledge of the hazardous condition could be presumed.

The City's witnesses here also state in deposition testimony that the City is aware of the fact that plumbers and other private contractors employed by business owners in the area need to enter this manhole "from time to time" for various purposes. Additionally, Wolfe and Wiltz acknowledge that these third parties are supposed to notify the city when they need to enter the manhole but do not do so. Thus, according to Wolfe and Wiltz, the City had actual notice of these authorized and unauthorized disturbances of manhole covers and yet the City proudly proclaims it does not inspect these manhole covers "at all unless someone complains." Despite notice that third parties from "time to time" remove these manhole covers the City did nothing over the course of twenty years or more to determine whether their manhole covers were left in an unreasonably dangerous condition by these unauthorized or authorized third parties. One can easily surmise that one reason the City requires third parties to get permission to enter the manhole covers is so that the City can follow up and make sure the covers are replaced correctly. And yet, the City boldly proclaims it has never made any effort to do so . To add insult to injury, according to Wolfe, the City not only has no requirement that its employees report any problem with the manhole cover , but Wolfe says there is not even "an expectation" that any problem be reported by City workers . This statement by Wolfe belies the majority's statement that "He agreed that other employees would report a cover that is not flush in the frame." Wolfe says reporting any perceived problem is "self-driven" by the employees. Additionally, when asked "are any City of Lafayette employees trained or educated on at what point a manhole cover becomes a dangerous condition if its not flush with the street and its [not] sitting perfectly" he replied (emphasis added):

No . I understand where you're coming from. We are not-I don't know of any training about going out and looking for manhole or drain covers that are not flush with the frame. Nine times out of ten, you would not be able to determine that from a drive-by, and we don't inspect them at all that I'm aware of.

This admitted failure on the part of the City to enforce its own requirements which relate to reasonable maintenance of its manhole covers further indicates that the City is deemed to know of any unreasonably dangerous condition which it could have easily avoided and/or discovered by enforcement of its policy. This bespeaks more than voluntary ignorance, it is willful negligence for which no notice, constructive or otherwise, is required to hold the City accountable.

The requirement of notice to the municipality is inapplicable to a case where the dangerous condition is attributable to negligent acts of the city or its employees. Only where the negligence relied upon is the failure of the city to repair a defective condition not caused by its own act or neglect is the question of notice an essential element. Pickens v. St. Tammany Parish, 323 So.2d 430 (La.1975). When the municipality creates the defective condition by its own substandard conduct, it is presumed to have knowledge of the hazardous condition. Toledano v. Sewerage & Water Board, 95-1130 (La.App. 4th Cir.3/14/96), 671 So.2d 973.

Whatley v. City of Winnfield , 35,132 (La.App. 2 Cir. 12/5/01), 802 So.2d 983, 986, writ denied , 02-15 (La. 3/22/02), 811 So.2d 939 (emphasis added).

Constructive notice means notice which the law imputes from the circumstances of the case and is based on the theory that negligent ignorance is no less a breach of duty than willful neglect , and that negligence in not knowing of the dangerous condition may be shown by circumstances....
The fact that a municipality is charged with the duty of exercising ordinary care to keep its streets and pavements in a reasonably safe condition for public use, implies that it is charged with notice of defects of which the municipality, through its authorized officers, could obtain knowledge or discover by the exercise of ordinary care and reasonable diligence.

"Constructive notice," 19 McQuillin Mun. Corp. § 54:183 (3d ed.) (footnotes omitted) (emphasis added).

In addressing constructive notice under Article 2315 general negligence the courts have said:

The concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant's garde. Dufrene v. Gautreau Family, LLC, 07-547 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, writ denied, 980 So.2d 694, 2008-0629 (La. 5/9/08), writ denied, 980 So.2d 698, 2008-0628 (La. 5/9/08). One is presumed to have constructive notice of a defect or dangerous condition when it is shown to have existed for such a long period of time that knowledge thereof can be presumed, or that it can be said that one should have had knowledge of the condition. Charan v. Bowman, 06-0882 (La.App. 1 Cir. 8/1/07), 965 So.2d 466, writ denied, 07-1773 (La. 11/9/07), 967 So.2d 505.
Several Louisiana cases have addressed the issue of a custodian's failure to discover vices or defects in things under their custody for a lengthy period of time. For example, in Moody v. Blanchard Place Apartments, 34,587 (La.App. 2 Cir. 6/20/01), 793 So.2d 281, the plaintiff sustained injuries when he received an electric shock from the stove on which he was cooking due to a short circuit. The stove was approximately ten years old at the time of the plaintiff's injury. Id. at 284. The onsite manager of the plaintiff's apartment building testified during a deposition that she inspected the stoves in the apartment building; however, she never inspected the actual wiring beneath the cooktop where the short circuit occurred. The onsite manager did state, however, that repairmen occasionally made repairs to the stove. Id. The jury returned a verdict holding the defendants liable. On appeal, the Second Circuit took up the question of whether the jury was manifestly erroneous in finding that the defendants knew or should have known that the stove presented a risk of harm. The Second Circuit found no manifest error in the jury's finding, noting that the property management company's "policy of not requiring that (and almost making it cost prohibitive to have) qualified technicians maintain the electrical appliances on their premises is indicative that it knew or should have known that a dangerous condition was or could have been present in any of its appliances." Id. at 294-95.
In Johnson v. City of Winnfield, 37,939 (La.App. 2 Cir. 12/10/03), 862 So.2d 433, the plaintiff was injured when he stepped on a manhole cover. As he stepped on the manhole cover, the manhole cover shifted, and the plaintiff's leg fell into the sewer line. Immediately after the accident, the store manager lifted the cover so the plaintiff could extricate his leg. Id. at 435. The manager described the cover as "worn on the bottom from erosion," with the "little lip around the bottom, that sits in the hole, that part was worn off." Id. The manager noted at trial that he had worked at the grocery store for 23 years, and had never noticed anything wrong with this manhole cover. The city did not have a routine manhole inspection policy, however, a city maintenance worker testified that he would have inspected this particular manhole shortly before the accident, after a private contractor had worked on the main sewer line from that location. That same worker replaced the manhole cover after the plaintiff's accident, even though he testified that when he arrived, the cover looked "fine"; he tried walking across it, "and it didn't pop up on [him]." Id. Three city maintenance workers (including the worker who replaced the manhole cover that caused the plaintiff's injury) testified they had never received any complaints regarding the manhole cover. The Second Circuit found no error in the trial court's conclusion that the city had actual or constructive knowledge that the manhole cover was unstable. Id. at 437-38.
In this case, after conducting a de novo review of the record, we find that there is a material issue of fact as to whether Wendy's had constructive or actual notice of the alleged defects in the restaurant wall. Dr. Avent averred that the failure to bolt the wall to the structural steel was a defect that existed at the time of the construction of the restaurant and that Wendy's should have noticed the defect at the time of construction. The architectural plans for the restaurant clearly indicate that the north wall was supposed to be bolted to the structural steel. Dr. Avent indicated that Wendy's would have discovered the defect if it had exercised due care and had conducted proper inspections during the construction of the restaurant. Wendy's did not introduce evidence contesting these findings. Moreover, the parties do not dispute that the restaurant has been in Wendy's custody for approximately twenty years, and there is no indication in the record that Wendy's ever inspected the wall or discovered the alleged defect .

Meaux v. Wendy's Int'l, Inc. , 10-111, p.p. 17-19, (La.App. 5 Cir. 10/26/10), 51 So.3d 778, 788-89, writ granted , 10-2613 (La. 2/18/11), 57 So.3d 321.

Likewise, according to Plaintiff's expert the City's failure to secure this manhole cover or at the very least to use a vented cover created an unreasonably dangerous defect at the time of installation of the cover and the City has had over twenty years to correct the problem. And like the defendant in Wendy's , the City never inspected this manhole cover even though it knew that both authorized and unauthorized third parties remove and replace the cover, it knew that water may cause the cover to lift, and it knew vehicles can roll over this cover. In light of the City's self-proclaimed "turn a blind eye" approach to fulfilling its duty to maintain the streets and sidewalks in a reasonably safe condition it may be a sobering thought to just close one's eyes and imagine oneself stepping onto a manhole cover in Lafayette, Louisiana, and falling in.

For the reasons stated I respectfully dissent.

      That picture is attached to the end of this opinion.

      Under the negligence theory of art. 2315, the plaintiff bears the burden of showing, inter alia, that the public entity had knowledge of the problem, and failed to correct it within a reasonable time. Watson, supra. This knowledge may be actual, i.e. where the entity has been informed of or has discovered the defect, or constructive, i.e. where the defect has existed over a period of time and under such circumstances that in the exercise of due diligence the public body would have had notice of it, Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975).
      Boudoin v. City of Kenner , 89-39,540 (La.App. 5 Cir. 1/17/90), 556 So.2d 123, 124.

      The Louisiana State Supreme Court has repeatedly held municipalities have a duty to keep sidewalks and roadways in reasonably good repair. Molbert v. Toepfer, 550 So.2d 183, 186 (La.1989) ; Shipp v. City of Alexandria, 395 So.2d 727, 728 (La.1981) ; White v. City of Alexandria, 216 La. 308, 43 So.2d 618, 620 (1949).
      The Department of Transportation and Development shall adopt specific minimum safety guidelines with respect to highway and bridge design, construction, and maintenance for all public roads, highways, and streets under the jurisdiction of any political subdivision of this state and not in the state-maintained highway system. These guidelines shall correlate with and, so far as possible, conform to the system then current as approved by the American Association of State Highway and Transportation Officials allowing the flexibilities incorporated therein....
      The state, the Department of Transportation and Development, and any political subdivision of the state have a duty to maintain, repair, construct, or reconstruct any public road, highway, bridge, or street, or any portion thereof, in a manner that is not unreasonably dangerous for a reasonably prudent driver.
      La. R.S. 48:35 (D) and (E)(1)(a).

      We have described the question of whether a defect presents an unreasonable risk of harm as "a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts." Reed v. Wal-Mart Stores, Inc., 97-1174, p. 4 (La. 3/4/98), 708 So.2d 362, 364 (quoting Tillman v. Johnson, 612 So.2d 70 (La.1993) (per curiam)). As a mixed question of law and fact, it is the fact-finder's role-either the jury or the court in a bench trial-to determine whether a defect is unreasonably dangerous. Thus, whether a defect presents an unreasonable risk of harm is "a matter wed to the facts" and must be determined in light of facts and circumstances of each particular case. E.g., Dupree v. City of New Orleans, 99-3651, pp. 13-14 (La. 8/31/00), 765 So.2d 1002, 1012 (citation omitted); Reed, 97-1174 at p. 4, 708 So.2d at 364.
      Broussard v. State ex rel. Office of State Bldgs. , 12-1238, (La. 4/5/13), 113 So.3d 175, 183-84.


source: Caselaw Access Project

author: JAMES F. MCKAY III, CHIEF JUDGE

license: Public Domain

text:
    Erika MANN v. TIM CLARK CONSTRUCTION, LLC
    NO. 2018-CA-0961
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 22, 2019
    CAROL WELBORN REISMAN, PATRICK REAGIN, DAVID L. REISMAN, RAYMOND WAID, LISKOW & LEWIS, 701 Poydras Street, Suite 5000, New Orleans, Louisiana 70139, COUNSEL FOR PLAINTIFF/APPELLANT
    KARL H. SCHMID, CHARLES B. LONG, TRAVIS BOURGEOIS, DEGAN, BLANCHARD & NASH, 400 Poydras Street, Suite 2600, New Orleans, Louisiana 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Daniel L. Dysart )
   JAMES F. MCKAY III, CHIEF JUDGE

Plaintiff, Erika Mann ("Ms. Mann"), seeks review of the trial court's July 16, 2018 judgment, granting a motion for summary judgment in favor of defendant, Evanston Insurance Company ("Evanston"), and denying Ms. Mann's cross-motion for partial summary judgment. For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Ms. Mann entered into a contract with Tim Clark Construction ("TCC") to elevate her home. Work began on the project in the latter part of 2011. Ms. Mann has acknowledged that she noticed damages to her home almost immediately thereafter. TCC obtained a certificate of occupancy and completion on March 12, 2012. However, elevation studies performed at that time allegedly showed that the house was not elevated to proper levels.

On June 28, 2012, Ms. Mann notified TCC that it had not completed the project as agreed, that the work was improperly performed, and that the home failed inspection. TCC subsequently performed additional work in an attempt to remedy the issues and repair the damages.

On August 22, 2014, Ms. Mann filed a petition for damages alleging that TCC caused physical damages to her home and property, which caused her mental anguish. Ms. Mann later amended her petition to name TCC's various insurers, including Evanston.

TCC had a series of insurers; Evanston insured TCC from March 3, 2014, to March 3, 2015. Evanston's policy contains the commonly-used commercial general liability (CGL) form that includes coverage for bodily injury and property damage.

The Evanston policy is an "occurrence policy" requiring that the bodily injury and/or property damage occur during the policy period. In addition, the policy contains a pre-existing injury endorsement, excluding from coverage any damage or loss that occurred prior to the policy period. The policy provides, in pertinent part, as follows:

SECTION I - COVERAGES
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" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or "suit" which may result....
* * *
b. This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an occurrence that takes place in the "coverage territory";
(2) The "bodily injury" or "property damage" occurs during the policy period;

The policy defines occurrence as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The policy also contains the following endorsement:

PRE-EXISTING INJURY, LOSS OR DAMAGE EXCLUSION
THIS ENDORSEMENT CHANGES THE POLICY.
The coverage under this policy does not apply to "bodily injury," "property damage," "personal damage," "personal and advertising injury," or any injury, loss or damage:
(A) which first occurred, began to occur, or is alleged to have occurred prior to, or is alleged to be in the process of occurring or occurring to any degree, as of the inception date of this policy;
or
(B) which is caused by or alleged to have been caused by incremental, continuous or progressive damage arising from an occurrence which first occurred, began to occur, or is alleged to have occurred prior to the inception date of this policy.

Evanston filed a motion for summary judgment, arguing that its policy precluded coverage for Ms. Mann's damages because the alleged damages did not occur during the March 3, 2014 to March 3, 2015 policy period. In support of the motion, Evanston introduced Ms. Mann's deposition wherein she testified that she noticed damages to her home shortly after it was lifted in the fall of 2011. Additionally, Evanston relied on Ms. Mann's amended petition, alleging that TCC's collection efforts, including a lien on the property in 2012, caused her much mental anguish. In sum, Evanston submits that Ms. Mann's property damages and mental anguish began to occur prior to their policy period.

Ms. Mann opposed the motion and filed a cross-motion for partial summary judgment against Evanston. The cross-motion asserts that Ms. Mann and her property were repeatedly exposed to harmful conditions created by TCC beginning in 2011 and continuing up through, at the earliest, October 2016, when TCC's expert inspected her home. The majority of Ms. Mann's claims set forth in the cross-motion concern the interpretation of the Evanston policy provisions.

Ms. Mann's cross-motion further asserts that Evanston was in bad faith because, in denying coverage, Evanston misrepresented the application of the policy to her damages in violation of La. R.S. 22:1973(B)(1) . It must be noted that Ms. Mann did not assert a cause of action for bad faith misrepresentation against Evanston in her petition for damages. Fraudulent misrepresentation was only pled against TCC.

The trial court initially rendered judgment on September 12, 2017, in favor of Evanston, finding that the pre-existing injury endorsement in the policy was unambiguous and enforceable, and that the policy precluded coverage. Evanston was dismissed with prejudice. With regard to Ms. Mann's cross-motion for partial summary judgment, the trial court granted some of the requests for relief, denied others, and deferred some, presumably until trial.

Ms. Mann appealed the September 12, 2017 judgment, which this Court vacated and remanded. See Mann v. Tim Clark Constr. LLC, 2017-0983, (La. App. 4 Cir. 5/23/18), 248 So.3d 504. In our opinion rendered on Ms. Mann's first appeal, we stated:

As noted by Mann, the district court's judgment is patently inconsistent. While it dismissed all of Mann's claims against Evanston with prejudice, it granted certain items of relief in Mann's favor under the Evanston policy. Evanston cannot be dismissed with prejudice while some of Mann's claims against it are retained.
This court cannot determine if the district court intended to grant partial summary judgment in Evanston's favor with regard to the pre-existing endorsement alone or dismiss all of Mann's claims against it. That the district court intended to grant a partial summary judgment in Evanston's favor is the only way to reconcile the inconsistencies in the judgment before us.

Id. at p. 3, 248 So.3d at 505 (emphasis in original).

Considering the inconsistencies identified in the trial court's ruling, we vacated the September 12, 2017 judgment and remanded for clarification. On remand, the matter was brought before the court on June 29, 2018, pursuant to Evanston's motion to clarify and amend the September 12, 2017 judgment to dismiss all of Ms. Mann's cross-claims. Ms. Mann filed an opposition to Evanston's proposed amended judgment, arguing that she be allowed to litigate her bad faith claims against Evanston.

Judgment was rendered on July 16, 2018, granting summary judgment in Evanston's favor and dismissing all of Ms. Mann's claims against Evanston with prejudice. It was further decreed that Ms. Mann's cross-motion for partial summary judgment filed against Evanston was denied in its entirety. Ms. Mann's appeal of the July 16, 2018 judgment is now before the Court.

LAW AND ANALYSIS

Standard of Review:

Appellate courts apply a de novo standard of review in considering lower court rulings on summary judgment motions. Arceneaux v. Amstar Corp. , 2015-0588, (La. 9/7/16), 200 So.3d 277, 281. Thus, we use the same criteria that govern the district court's consideration of whether summary judgment is appropriate. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).

As this Court held in Thebault v. Am. Home Assur. Co. , 2015-0800, p. 5 (La. App. 4 Cir. 4/20/16), 195 So.3d 113, 116-17 :

Interpretation of an insurance policy usually involves a legal question that can be resolved properly within the framework of a motion for summary judgment. Bonin v. Westport Ins. Corp. , 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910 ; Zeitoun v. Orleans Parish School Bd. , 09-1130, p. 3 (La. App. 4 Cir. 3/3/10), 33 So.3d 361, 364. An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co. , 02-1637, p. 3 (La. 6/27/03), 848 So.2d 577, 580. When the language of a policy is clear and not ambiguous, the insurance contract must be enforced as written. When the wording is clear, a court lacks the authority to alter or change the terms of the policy under the guise of interpretation. Louisiana Ins. Guar. Ass'n. v. Interstate Fire & Cas. Co. , 93-0911 (La. 1/14/94), 630 So.2d 759, 764.

In this appeal, Ms. Mann asserts that the trial court erred in: 1) rejecting the exposure theory set forth in Cole v. Celotex , 599 So.2d 1058 (La. 1992) and its progeny; 2) failing to consider the pre-existing injury exclusion in light of Cole; 3) failing to understand that TCC's malicious prosecution of Ms. Mann was covered under Part B of the Evanston policy and was a separate and distinct insurable offense, which should not have been excluded by the pre-existing injury exclusion; and 4) failing to make clear that it was not dismissing Ms. Mann's bad faith claims.

Assignments of Error No. 1 and 2 : Failure to apply Cole and its progeny.

Ms. Mann argues in these first two assignments of error that the trial court erred when it rejected the "exposure theory" set forth in Cole , and instead applied the "manifestation theory" to find that the Evanston policy did not provide coverage for her damages. Ms. Mann asserts that her property damage and mental anguish did not result solely from TCC's initial act of lifting her home. Rather, Ms. Mann submits that she sustained ongoing and progressive property damage and mental anguish as a result of both TCC's failure to perform the contract in good faith and the ongoing collections efforts. Thus, pursuant to the exposure theory, she argues that her damages continued to occur during the subsequent policy periods, including the Evanston policy. We find no merit in this assertion.

Discussing the two prevailing theories relating to the occurrence of property damage under contractual language in insurance cases, the Supreme Court has stated:

Cases interpreting whether an "occurrence" occurs during a policy period of insurance coverage have considered both the exposure theory and the manifestation theory.
Under the exposure theory, damage would be considered to have occurred when the act which resulted in the damage took place, not when the damage was discovered. Thus, where damage develops over a period of time from continuous or repeated exposure to injurious conditions, courts have determined that the occurrence took place either at the inception of the exposure period or continuously during the entire course of exposure, as in asbestos cases . Even where the damage or injury was not manifested until after an insurer's policy period, if the insurer's policy period fell either at the inception or during the course of exposure, the insurer would be liable.
Under the manifestation theory, property damage would be considered to have occurred when it became manifest, regardless of when the act from which it resulted occurred. Oxner v. Montgomery , 34,727, p. 11 (La. App. 2 Cir. 8/1/01), 794 So.2d 86, 93, writ denied , 2001-2489 (La. 12/7/01), 803 So.2d 36, citing Korossy v. Sunrise Homes, Inc. , 94-473 (La. App. 5 Cir. 3/15/95), 653 So.2d 1215, writs denied , 1995-1536 (La. 9/29/95), 660 So.2d 878, 1995-1522(La. 9/29/95), 660 So.2d 878.

Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 2010-2267, p. 42 (La. 10/25/11), 79 So.3d 246, 278, n.75 (emphasis added).

As further explained by the First Circuit Court in St. Paul Fire & Marine Ins. Co. v. Valentine, 95-0649, p. 5 (La. App. 1 Cir. 11/9/95), 665 So.2d 43, 46,

In Cole the Supreme Court did adopt the exposure theory as the trigger for coverage for claims brought by plaintiffs who had suffered long-term exposure to asbestos. However, in reaching this result, the Court noted several times "[t]he uniqueness of asbestosis cases and the difficulties of trying to fit such cases within the framework of concepts designed to handle traditional torts...." Cole , 599 So.2d at 1065.

In Lafayette Ins. Co. v. C.E. Albert Const. Co., Inc., 95-0048, (La. App. 4 Cir. 9/15/95), 661 So.2d 1093, 1096, this Court refused to apply the rationale of Cole where the property damage resulting from a defective product did not occur during the policy period. This reasoning was also followed in James Pest Control, Inc. v. Scottsdale Insurance Company , 99-1316 (La. App. 5 Cir. 6/27/00), 765 So.2d 485, which held that the manifestation of termite damage triggered insurance coverage.

In Rando v. Top Notch Properties, L.L.C., 2003-1800, p. 18 (La. App. 4 Cir. 6/2/04), 879 So.2d 821, 833, this Court surveyed the jurisprudence relating to the issue of the trigger of coverage in CGL policies for construction defects, noting that "the clear weight of authority in more recent cases" supported use of the manifestation theory.

Considering the characteristics of the damages alleged by Ms. Mann and the relevant provisions of the Evanston policy, we believe that the manifestation theory is applicable to determine whether the Evanston policy is triggered. Thus, we find Ms. Mann's reliance on Cole and the exposure theory is misplaced.

Next, we turn to Ms. Mann's assertion that the Evanston policy's pre-existing injury exclusion is ambiguous (because it conflicts with the declarations page), inapplicable (because it conflicts with Cole ) and against public policy.

In Gibbs Construction, L.L.C. v. National Rice Mill, L.L.C. , 2017-0113, pp. 11-12 (La. App. 4 Cir. 2/21/18), 238 So.3d 1033, 1041-42, this Court recently reiterated the well-established principles on the interpretation of insurance policies, as follows:

An insurance policy is a conventional obligation that constitutes the law between the insured and the insurer, and the agreement governs the nature of their relationship. See La. C.C. art. 1983. Moreover, an insurance policy is a contract, which must be construed employing the general rules of interpretation of contracts. Supreme Services [and Specialty Company, Inc. v. Sonny Greer, Inc. , 06-1827, p. 5 (La. 5/22/07), 958 So.2d 634, 638 ]; Reynolds , 634 So.2d at 1183 ; La. C.C. arts. 2045 - 2057. If the insurance policy's language clearly expresses the parties' intent and does not violate a statute or public policy, the policy must be enforced as written. See La. C.C. art. 2046 ; Rando v. Top Notch Properties, L.L.C. , 03-1800 (La. App. 4 Cir. 6/2/04), 879 So.2d 821. Courts are not at liberty to alter the terms of insurance policies that are unambiguous. Edwards v. Daugherty , 03-2103 (La. 10/1/04), 883 So.2d 932. However, if any doubt or ambiguity exists as to the meaning of a provision in an insurance policy, it must be construed in favor of the insured and against the insurer. See La. C.C. art. 2056. When the ambiguity relates to an exclusionary clause, the law requires that the contract be interpreted liberally in favor of coverage. Borden, Inc. v. Howard Trucking Co., Inc. , 454 So.2d 1081, 1090 (La. 1983) ; Williamson v. Historic Hurstville Ass'n , 556 So.2d 103, 107 (La. App. 4 Cir. 1990).
Liability insurance policies should be interpreted to effect, rather than to deny coverage. Yount v. Maisano , 627 So.2d 148, 151 (La. 1993). However, it is well-settled that, absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose reasonable conditions upon the obligations they contractually assume. Supreme Services , supra at p. 6, 958 So.2d at 638-639 ; Reynolds , 634 So.2d at 1183 ; Marcus v. Hanover Insurance Co., Inc. , 98-2040, p. 4 (La. 6/4/99), 740 So.2d 603, 606. In these circumstances, unambiguous provisions limiting liability must be given effect. Supreme Services , supra at p. 6, 958 So.2d at 639. Only if the language can reasonably be read to have more than one reasonable meaning can the language be said to be ambiguous. Rando , supra at p. 3, 879 So.2d at 825. Whether a contract provision is ambiguous is a question of law. Pope v. Khalaileh , 05-0027, p. 5 (La. App. 4 Cir. 6/1/05), 905 So.2d 1149, 1152. Moreover, [the insurer] bears the burden of proving that a loss falls within a policy exclusion. Blackburn v. National Union Fire Ins. Co. , 00-2668, p. 6 (La. 4/3/01), 784 So.2d 637, 641 ; Rando , supra at p. 3, 879 So.2d at 825.

In the present case, the language of the pre-existing injury exclusion is clear. It provides no coverage for damages that first occurred or began to occur prior to the policy's inception date. We find no ambiguity in that language, nor do we find that the exclusion conflicts with any other provision of the policy. Ms. Mann argues that the policy is ambiguous because the exclusion is inconsistent with the policy's declaration page, which provides no retroactive date. Evanston counters, asserting that there is no retroactive date listed because the policy declarations make clear that the policy is an "occurrence policy," providing coverage only for occurrences which happen during the policy period. We agree with Evanston's assertion and reiterate our finding that the policy is clear and unambiguous.

Finally, Ms. Mann asserts that the exclusion violates public policy by trying to circumvent Cole . However, Ms. Mann has provided no authority for her position that the Evanston policy is against public policy, nor do we find anything in the exclusion that violates the public policy of Louisiana.

For the foregoing reasons, we find no merit in Ms. Mann's first two assignments of error. Pursuant to the manifestation theory, which we submit is proper here, the Evanston policy does not provide coverage for the property damage and emotional distress that manifested prior to the policy period. As stated above, Ms. Mann acknowledged that the property damages and mental anguish began to occur in 2011 and 2012, which pre-dated the March 3, 2014 inception date of the Evanston policy.

Assignment of Error No. 3 : Failure to recognize that the Evanston policy provided coverage for Ms. Mann's malicious prosecution claim.

Ms. Mann submits that two acts of malicious prosecution occurred during the Evanston policy period: 1) an April 17, 2014 collection letter from TCC, demanding amounts due under the contract; and 2) TCC's December 4, 2014 reconventional demand alleging amounts due by Ms. Mann under the contract.

Ms. Mann asserts that these acts of malicious prosecution were covered under "Coverage B" of the Evanston policy and were separate and distinct insurable offenses, which should not have been excluded by the pre-existing injury exclusion.

Coverage B provides coverage for "those sums that the insured becomes legally obligated to pay as damages because of 'personal and advertising injury' to which this insurance applies." The policy's definition of "personal and advertising injury" includes malicious prosecution.

Evanston counters, arguing that the 2014 collection letter and reconventional demand were simply a continuation of TCC's attempts to collect a debt allegedly owed by Ms. Mann. We agree.

The record confirms that TCC began its collection efforts prior to the Evanston policy period. Moreover, Ms. Mann acknowledged in her cross-claim that she suffered mental anguish from the 2012 collection letter and lien. As with the property damage claims discussed above, the pre-existing injury exclusion, which applies to the entire policy, also precludes coverage for the continuation of Ms. Mann's mental anguish that began to occur prior to the Evanston policy.

We also note from our review of the record that Ms. Mann never pled malicious prosecution in her petition for damages and never raised the claim in her cross-motion for partial summary judgment. For these reasons, we find that the trial court did not err in failing to recognize Ms. Mann's malicious prosecution claim.

Assignment of Error No. 4: Failure to state whether Ms. Mann's bad faith claims were dismissed.

In her final assignment of error, Ms. Mann alleges that the trial court erred in failing to make clear that it was not dismissing her bad faith claims. This assignment of error is without merit.

The July 16, 2018 judgment states:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Summary Judgment is GRANTED in Evanston's favor, dismissing all of Plaintiff's claims against Evanston, with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff Erika Mann's Cross-Motion for Partial Summary Judgment is DENIED .

In ruling from the bench, the trial court stated:

When considering Ms. Mann's bad faith claims, the Court agrees with Evanston that the Court could not consider any bad faith claims against Evanston because no such claims were pled by Ms. Mann in her petition. [citing La. C.C.P. art. 966(A)(1) ]. Since Ms. Mann did not pray for bad faith against Evanston in her petitions, said claims, including the deferred ones, are not properly before the Court for summary judgment.

It is clear from a review of the pleadings that Ms. Mann failed to allege any bad faith claims against Evanston. Pursuant to La. C.C.P. art. 966(A)(1), "[a] party may move for a summary judgment for all or part of the relief for which he has prayed." The trial court correctly denied summary judgment on Ms. Mann's bad faith claims, which were alleged for the first time in her cross-motion for partial summary judgment. Moreover, contrary to Ms. Mann's assertions, the record reflects that the trial court denied Ms. Mann's cross-motion for partial summary judgment in its entirety and declined to consider the bad faith claims because they were never pled. The trial court's judgment is clear.

CONCLUSION

For the foregoing reasons, we find no merit in any of Ms. Mann's assignments of error. Accordingly, we affirm the trial court's judgment granting summary judgment in favor of Evanston and in denying Ms. Mann's cross-motion for partial summary judgment.

AFFIRMED

      La. R.S. 22:1973 provides in pertinent part:
      A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
      B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer's duties imposed in Subsection A of this Section:
      (1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.

      In addition to these four assignments of error, Ms. Mann attempts to bring up newly discovered evidence concerning TCC's alleged illegal joint venture activities as a reason to reverse the trial court's judgment. It does not appear that Ms. Mann sought a new trial based on newly discovered evidence. "As a general rule, appellate courts will not consider issues raised for the first time in this court, which are not pleaded in the court below and which the district has not addressed." Geiger v. State ex rel. Dept. of Health and Hosp. , 2001-2206, p. 10 (La. 4/12/02), 815 So.2d 80, 86 (internal citations omitted). Ms. Mann's claims raised for the first time on appeal are not considered herein.


author: JUDGE SANDRA CABRINA JENKINS

text:
    A. Charles FERGUSON and Elizabeth B. Carpenter v. AMERICAN EMPIRE SURPLUS LINES INSURANCE CO., Treymark Properties, LLC, and Mark E. Morice
    NO. 2019-CA-0061
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 22, 2019
    Jacqueline C. Barber, 701 Loyola Avenue, Suite 404, New Orleans, LA 70113, Justin Asher Zitler, 4819 Constance Street, New Orleans, LA 70115, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Paul D. Palermo, Craig V. Sweeney, BLUE WILLIAMS, LLP, 3421 N. Causeway Blvd, Suite 900, Metairie, LA 70002, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )
   JUDGE SANDRA CABRINA JENKINS

A. Charles Ferguson and Elizabeth B. Carpenter (collectively, "Plaintiffs") appeal the trial court's September 7, 2018 judgment granting the Motion for Summary Judgment filed by appellees, Treymark Properties, LLC ("Treymark") and Mark Morice (collectively, "Defendants"). The lawsuit arises from injuries sustained by Mr. Ferguson when he slipped and fell off the roof of a house at 3125-27 Jena Street in New Orleans, which was allegedly owned and maintained by Defendants. When he fell, Mr. Ferguson was helping a friend, Brett Newkirk, who had been hired by Defendants to patch the roof of the house. We find genuine issues of material fact as to whether Mr. Ferguson was a trespasser or an invitee on the Defendants' property when he slipped and fell, and whether the dangerous condition of the roof was open and obvious. Accordingly, we reverse the trial court's judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On September 19, 2016, Mr. Ferguson and Mr. Newkirk were repairing the tile roof of the house, which had a very steep slope. Mr. Newkirk slipped and fell 23 feet from the roof, landing on a concrete sidewalk. After Mr. Ferguson heard Mr. Newkirk scream and went to help him, Mr. Ferguson also slipped and fell off the roof at the same spot as Mr. Newkirk. As a result of his fall to the concrete below, Mr. Ferguson had multiple surgeries and had one leg amputated.

On July 21, 2017, Plaintiffs filed suit against Defendants alleging that Defendants failed to maintain the premises in a reasonably safe condition and failed to generally exercise due care. Additionally, the Petition alleged: (1) failure to discover an unreasonably dangerous condition; (2) failure to correct the condition or warn of its existence; (3) failure to warn plaintiff of the defect; and (4) failure to act as a responsible and prudent person under the circumstances. The Petition asserted that Defendants knew, or in the exercise of reasonable care, should have known, of the "vice or defect" in the roof.

On May 9, 2018, Defendants filed a Motion for Summary Judgment asserting that the roof was not unreasonably dangerous and that Defendants did not owe a duty to Ferguson. The hearing on the Motion for Summary Judgment was held on September 7, 2018, after which the trial court granted Defendants' Motion for Summary Judgment and dismissed Plaintiffs' claims against Defendants, with prejudice. The trial court found that Plaintiffs could not satisfy their burden at trial of proving that the roof was unreasonably dangerous or that Defendants owed a duty to protect Plaintiffs from the harm they allegedly sustained.

DISCUSSION

Plaintiffs list three assignments of error:

(1) Genuine issues of material fact exist which preclude summary judgment;
(2) There are case-specific issues as to whether there was an unreasonable risk of harm, such that Defendants failed to meet their burden on summary judgment under the "open and obvious" doctrine;
(3) The trial court erred by failing to make reasonable inferences viewed in the light most favorable to the party opposing the motion.

Standard of Review

We apply a de novo standard of review in examining a trial court's ruling on summary judgment. Hare v. Paleo Data, Inc. , 11-1034, p. 9 (La. App. 4 Cir. 4/4/12), 89 So.3d 380, 387. Accordingly, we use the same criteria that govern a trial court's consideration of whether summary judgment is appropriate. Id. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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(A)(3). In "determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence ." Fiveash v. Pat O'Brien's Bar, Inc. , 15-1230, p. 7 (La. App. 4 Cir. 9/14/16), 201 So.3d 912, 917 (emphasis in original) (quoting Quinn v. RISO Invest., Inc. , 03-0903, pp. 3-4 (La. App. 4 Cir. 3/3/04), 869 So.2d 922, 926 ).

Burden of Proof

La. C.C.P. art. 966(D)(1) governs the mover's burden on a motion for summary judgment:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Mr. Ferguson's Status as Invitee or Trespasser

First, Plaintiffs contend that there are genuine issues of material fact as to whether Mr. Ferguson was trespassing on the property when he slipped and fell. According to Plaintiffs, Mr. Ferguson was invited by Mr. Morice to voluntarily assist Mr. Newkirk in repairing the roof. Plaintiffs assert that while Mr. Newkirk and Mr. Ferguson were driving to the property, Mr. Newkirk answered a phone call from Mr. Morice, and reminded him that Mr. Ferguson would be helping with the repairs by acting as a "gofer." Plaintiffs contend that Mr. Morice consented.

Mr. Morice, on the other hand, contends that Mr. Ferguson was trespassing, and he had no knowledge that Mr. Ferguson was on the roof.

Before 1976, Louisiana jurisprudence created a strict series of categories classifying persons entering land belonging to another. The comprehensive classification scheme defined a landowner's duty to entrants injured on the premises because of unreasonably dangerous conditions. The three main classes developed were "trespasser," "licensee," and "invitee," and the scope of the duty owed by the landowner to the entrant varied depending on the status accorded the entrant. In Cates v. Beauregard Elec. Co-op., Inc. , 328 So.2d 367 (La. 1976), the Supreme Court abolished the common law classification system, and set forth a test to be applied in determining the scope and extent of a landowner's duty:

[W]hether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee or invitee in light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative . (Emphasis added.)

Id. at 371 (quoting Rowland v. Christian , 69 Cal.2d 108, 70 Cal. Rptr. 97, 104, 443 P.2d 561, 568 (1968) ); see also Melerine v. State , 505 So.2d 79, 80 (La. App. 4th Cir. 1987). This Court in Cuevas v. City of New Orleans , 99-2542, p. 5 (La. App. 4 Cir. 6/21/00), 769 So.2d 82, 86, stated that "[w]hen considering the duty owed by a landowner, the status of the injured person as an invitee or trespasser is relevant but not determinative." (Emphasis added.) Although not determinative, "the [plaintiff's] status might be considered in defining the scope and extent of the landowner's duty." David J. Szwak, Louisiana Premises Liability in the Post-Cates v. Beauregard Electric Cooperative Era , 53 La. L. Rev. 1935, 1963 (July 1993). In short, "these classifications may have some bearing on the question of liability which ultimately depends upon whether the landowner owed the plaintiff a duty to discover any unreasonably dangerous conditions on the premises and to either correct the condition or warn plaintiff of its existence." Giles v. Humble Oil & Refining Co. , 384 So.2d 569, 571 (La. App. 4th Cir. 1980).

For example, in Boycher v. Livingston Parish Sch. Bd. , 96-2766, p. 5 (La. App. 1 Cir. 6/29/98), 716 So.2d 187, 191 the Court relied on the plaintiff's status as an invitee as a factor in its duty risk analysis ("The owner of immovable property owes his invitee the duty to keep the property in a reasonably safe condition for use which is consistent with the purpose of the invitation , including the discovery of reasonably foreseeable conditions which may be dangerous.") (emphasis added) (footnote omitted) (citation omitted). In Entrevia v. Hood , 427 So.2d 1146 (La. 1983), the Supreme Court considered the fact that the plaintiff was a trespasser in concluding that the rear steps to the porch of an abandoned farm house did not present an unreasonable risk of harm. Id. at 1150. Compare Pepper v. Triplet , 03-0619, p. 5 (La. 1/21/04), 864 So.2d 181, 198 (neighbor was not strictly liable for injuries sustained by a trespasser who was bitten by the neighbor's dog while in the neighbor's back yard), with Thibodeaux v. Krouse , 2007-2557, p.6 (La. App. 1 Cir. 6/6/08), 991 So.2d 1126, 1130 (finding that defendant's dog presented an unreasonable risk of harm based on evidence that plaintiff's presence in the back yard was authorized).

The question then arises: Given that the plaintiff's status is relevant to the scope of a landowner's duty, is there a genuine issue of material fact as to whether Mr. Ferguson was a trespasser or an invitee, which would preclude summary judgment?

"A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Ardoin v. Cleco Power , LLC , 10-815, p. 3 (La. 7/2/10), 38 So.3d 264, 266 (citing King v. Illinois Nat'l Ins. Co., 08-1491, p. 6 (La. 4/3/09), 9 So.3d 780, 784 ). "Simply put, a 'material' fact is one that would matter on the trial on the merits." Smith v. Our Lady of the Lake Hosp. , 93-2512, p 27 (La. 7/5/94), 639 So.2d 730, 751. "Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits." Id.

We find that the factual issue as to Mr. Ferguson's status as either an invitee or a trespasser "would matter on the trial on the merits." Labeling of the plaintiff's status is a factor in determining the unreasonableness of the danger. Van Pelt v. Morgan City Power Boat Ass'n, Inc. , 489 So.2d 1346, 1350 (La. App. 1st Cir. 1986). Mr. Morice attests in his affidavit that he did not invite Mr. Ferguson to the property, he never met or talked to Mr. Ferguson, and he did not know that Mr. Ferguson was on the property to assist Mr. Newkirk in the repair of the roof. Plaintiffs contend that Mr. Morice expressly invited Mr. Ferguson to work on the property. These classifications have some bearing on the question of liability, which ultimately depends on whether the landowner owed the plaintiff a duty to discover any unreasonably dangerous conditions on the premises and to either correct the condition or warn plaintiff of its existence.

For these reasons, we conclude that there are genuine issues of material fact for trial as to Mr. Ferguson's status, and we reverse the trial court's grant of summary judgment in favor of Defendants.

Open and Obvious Condition

Defendants argue that they owe no legal duty to Mr. Ferguson because the condition of the roof was "open and obvious." The Defendants, as the movers, have the initial burden of establishing a prima facie case that the complained of condition that allegedly caused Mr. Ferguson's fall and resulting injuries was open, obvious, and not unreasonably dangerous. See Jones v. Stewart , 16-0329, p. 22-23 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 398. "[I]n the usual case, any obvious nature of the danger will determine only the issue of whether the plaintiff was comparatively negligent and not the issue of whether the defendant had a duty." DeStevens v. Harsco Corp. , 94-1183, p. 6 (La. App. 4 Cir. 3/16/95), 652 So.2d 1054, 1058 (citing Socorro v. City of New Orleans , 579 So.2d 931 (La. 1991) ). "Only in the exceptional case of extremely obvious danger will the defendant be found to have no duty at all to warn of or remedy the danger." Id. We do not believe that Defendants have established "beyond the point of a 'genuine issue of material fact' that an extreme situation of totally one-sided fault of the plaintiff exists." Id.

Favorable Inferences

Plaintiffs' final argument is that the trial court erred by failing to make reasonable inferences viewed in the light most favorable to Plaintiffs, who opposed the summary judgment motion. When reviewing a motion for summary judgment, we view the record, and draw all reasonable inferences that may be drawn from it, in the light most favorable to the non-movant. Tsegaye v. City of New Orleans , 15-0676, p. 19 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 717. However, given our decision to reverse the trial court's judgment, we pretermit any discussion of this issue.

Judicial Notice

After all briefing deadlines had passed, Plaintiffs filed "Requests for Judicial Notice." In the Requests, Plaintiffs asked this court to take judicial notice of a largely illegible weather forecast taken from a newspaper dated September 18, 2016, to show that the rainy weather created an unreasonably dangerous condition on the tiled roof of the house. Plaintiffs also ask this Court to take judicial notice of a "succinct pamphlet" from OSHA entitled "Protecting Roofing Workers," which was not attached to the Request. Defendants filed a Motion to Strike Plaintiffs' Requests for Judicial Notice.

This Court cannot consider or take judicial notice of any evidence not admitted in the trial court or not added to the record on appeal by stipulation of the parties. City of New Orleans v. New Orleans Pub. Serv., Inc., 471 So.2d 233, 238 n.3 (La. App. 4th Cir. 1985). Furthermore, a court cannot dispose of a motion for summary judgment by taking judicial notice of a disputed material fact. Acadia-Vermilion Rice Irr. Co. v. Broussard , 185 So.2d 908, 911 (La. App. 3d Cir. 1966).

CONCLUSION

In sum, we find that genuine issues of material fact exist as to Mr. Ferguson's status as an invitee or a trespasser, and as to whether the condition of the roof was open and obvious. These are relevant factors in determining whether the roof presented an unreasonable risk of harm. Accordingly, we reverse the September 7, 2018 judgment of the trial court, and remand this matter for further proceedings. We deny Plaintiffs' Requests for Judicial Notice.

REVERSED AND REMANDED, REQUESTS FOR JUDICIAL NOTICE DENIED

LOBRANO, J., CONCURS IN THE RESULT.

BROWN, J., CONCURS IN THE RESULT.

BROWN, J., CONCURS IN THE RESULT.

As pointed out by the majority, in Jones v. Stewart , 16-0329, p. 14 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 393 (citing Bufkin v. Felipe's Louisiana , LLC , 14-0288 (La. 10/15/14), 171 So.3d 851, Rodriguez v. Dolgencorp, LLC , 14-1725 (La. 11/14/14), 152 So.3d 871, and Allen v. Lockwood , 14-1724 (La. 2/13/15), 156 So.3d 650 ), this Court explained that "absent any material factual issue, the summary judgment procedure can be used to determine whether a defect is open and obvious and thus does not present an unreasonable risk of harm." In Primeaux v. Best W. Plus Houma Inn , 18-0841 (La. App. 1 Cir. 2/28/19) --- So.3d ----, ---- (2019 WL 989727 *9), the First Circuit held that "[t]o grant summary judgment in the [moving parties'] favor, this court must conclude ... that no genuine issue of material fact exists that the complained of condition did not create an unreasonable risk of harm." I conclude that Defendants failed to establish a prime facie case that the roof which allegedly caused Mr. Ferguson to fall and sustain injuries was open, obvious, and not unreasonably dangerous. The only evidence submitted by Defendants in support of their motion for summary judgment was an affidavit by Mark Morice, the manager of Treymark Properties, LLC, in which Mr. Morice attested in pertinent part: (1) the roof was "very steep" and was made of tiles; (2) previously, no one had fallen off the roof of the property located at 3125-7 Jena; and (3) "Fergusons [sic] slip and fall off the roof could not have been anticipated by Defendants nor prevented by Defendants." In my opinion, Defendants failed to meet their burden of proof; thus, the burden never shifted to Plaintiffs pursuant to La. C.C.P. art. 966(D). Consequently, Defendants are not entitled to summary judgment in their favor as a matter of law.

      An invitee is "a person who goes on the premises with the express or implied invitation of the occupant on the business of the latter or for their mutual advantage." A "trespasser" is defined as "one who enters the premises without the permission of the occupier or without a legal right to do so." Butcher v. Gulf Ins. Co. , 295 So.2d 45, 47 (La. App. 4th Cir. 1974).

      The Collins English Dictionary defines a "gofer" as "a person whose job is to do simple and rather boring tasks for someone." https://www.collinsdictionary.com/us/dictionary/english/gofer (last visited May 13, 2019).

      In deciding that the steps did not present an unreasonable risk of harm, the Entrevia Court considered the plaintiffs' trespass on the premises to be "legally and morally reprehensible conduct," and its decision recognized that the land owner had "valid economic and privacy interests which our law seeks to protect from intruders such as the plaintiff." Id. at 1150.

      See Allen , 156 So.3d at 653 (wherein the Supreme Court found summary judgment proper when the defendants, the moving party, "produced evidence, through affidavits, depositions, and photographs, that the parking area had been used by congregants for decades without incident and the complained-of condition-the unpaved grassy parking area-was obvious and apparent to anyone who may potentially encounter it[,]" and "Plaintiff then failed to produce any evidence to rebut their evidence or demonstrate how the alleged defects caused the accident.").