author: MCCLENDON, J.

text:
    Earl PRIMEAUX v. BEST WESTERN PLUS HOUMA INN, Cajun Lodging, L.L.C. and ABC Insurance Company
    2018 CA 0841
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    Derriel C. McCorvey, H.D. Register, III, Lafayette, Louisiana, Counsel for Plaintiff/Appellant, Earl Primeaux
    Amanda H. Aucoin, Todd Musgrave, New Orleans, Louisiana, Counsel for Defendants/Appellees, Best Western Plus Houma Inn, LLC and Cajun Lodging, LLC
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   MCCLENDON, J.

In this trip and fall case, the plaintiff, Earl Primeaux, appeals the trial court's judgment that granted the motion for summary judgment filed by defendants, Best Western Plus Houma Inn and Cajun Lodging, LLC. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Primeaux, a hotel guest, tripped as he stepped onto the elevated entryway of the Best Western Plus Houma Inn located in Gray, Louisiana on October 19, 2014. Immediately before he fell, Mr. Primeaux drove his car under the covered area just outside of the Best Western's entrance in anticipation of checking out of the hotel. He exited his vehicle and walked toward the sliding doors, intent on entering the hotel lobby to return his room key. As Mr. Primeaux approached the entryway, his foot "caught the ledge" of the elevated curb of the entryway. He fell and struck his head on the sliding glass doors, sustaining various injuries. Mr. Primeaux subsequently filed suit for personal injuries on October 19, 2015.

The defendants answered the petition on January 15, 2016 and filed a motion for summary judgment on March 14, 2017. The defendants contended that Mr. Primeaux could not prove that his injuries were caused by an unreasonably dangerous condition on Best Western's premises. Therefore, according to the defendants, Mr. Primeaux could not satisfy his burden of proof pursuant to LSA-R.S. 9:2800.6, the Merchant Liability Statute, and the defendants were entitled to judgment as a matter of law. Particularly, the defendants asserted that the curb was painted bright yellow and was not hidden by debris or other obstructions. Instead, the defendants argued that the curb was open and obvious and was not unreasonably dangerous. Mr. Primeaux simply failed to see what should have been seen.

Mr. Primeaux opposed the motion, arguing that various code violations existed in the entryway of the Best Western which rendered the premises unreasonably dangerous. To establish these code violations, Mr. Primeaux offered the affidavit of Mitchell Wood, a licensed architect with knowledge and experience concerning planning and design for hotels. Mr. Wood attested that he reviewed the petition as well as photos of the entryway; however, there was no indication in the affidavit that Mr. Wood performed an inspection of the premises or personally observed the relevant area prior to the execution of his affidavit on April 19, 2017. Mr. Primeaux acknowledged that the curb was painted yellow, but offered the affidavit of witness, Angela Petry, to establish that the paint was dull, faded, and chipped. Finally, Mr. Primeaux asserted that the motion was premature because discovery was on-going.

The defendants filed a reply memorandum in response to Mr. Primeaux's opposition and objected to Mr. Wood's affidavit. See LSA-C.C.P. art. 966D(2). The defendants contended that the affidavit was not based on personal knowledge, as required by LSA-C.C.P. art. 967A but, instead, was based solely on unidentified photographs and the petition. Consequently, the defendants argued that Mr. Wood failed to affirmatively establish that he was competent to testify to the matters set forth in the affidavit.

On May 4, 2017, the day before the hearing on the defendants' motion, Mr. Primeaux filed a supplemental affidavit of Mr. Wood wherein he confirmed the opinions set forth in his original affidavit but stated that he performed an inspection of the premises, particularly the exterior curb ramp, the entry, and the exterior ceramic floor surface, on May 3, 2017.

A hearing on the defendants' motion for summary judgment was held on May 5, 2017. The trial court granted the defendants' motion for summary judgment at the conclusion of the hearing. The trial court examined the photographs submitted by both parties and noted that, although the parties disagreed regarding the brightness of the yellow paint, they agreed, and the photographs established, that the curb was painted yellow. The trial court found the curb was "clearly visible" and distinct from the surrounding area and concluded that the complained of condition was open and obvious and, therefore, was not unreasonably dangerous.

The trial court did not expressly rule on the defendants' objections to the exhibits attached to Mr. Primeaux's original opposition. However, it is clear that the trial court considered Mr. Wood's affidavit, despite the court's acknowledgment that Mr. Wood did not go to the scene of the plaintiff's fall prior to submitting the original affidavit. The trial court's comments made during its oral ruling demonstrate that the court determined that Mr. Wood's affidavit did not create a genuine issue of material fact concerning whether the curb was unreasonably dangerous. Particularly, the court noted that Mr. Wood's affidavit did not discuss factors typically cited by experts as being relevant to the determination of whether a condition is unreasonably dangerous, such as line of sight and distractions.

At the hearing on the motion, the defendants objected to Mr. Primeaux's supplemental opposition and attached exhibits and argued that LSA-C.C.P. art. 966 prohibited him from filing supplemental exhibits in support of his opposition and that the exhibits were untimely. The trial court sustained this objection, and Mr. Primeaux proffered the excluded exhibits.

Mr. Primeaux filed a motion and order for devolutive appeal in July 2017. However, the trial court's judgment lacked proper decretal language and was not a final, appealable judgment. Consequently, the appeal was dismissed on December 7, 2017. See Earl Primeaux v. Best Western Plus Houma Inn, Cajun Lodging, LLC, and ABC Insurance Company, 17-1328 (La. App. 1 Cir. 12/7/17). An amended judgment containing the proper decretal language was signed on April 25, 2018. From this judgment, Mr. Primeaux appeals.

In his first two assignments of error, Mr. Primeaux argues that the trial court erred by finding that the defendants met their burden of proof on summary judgment. According to Mr. Primeaux, Mr. Wood's affidavit established that the curb presented an unreasonable risk of harm, was a contributing factor to his fall, and the defendants knew or should have known of its deficient design. In his final assignment of error, Mr. Primeaux asserts that the trial court erred in granting the motion because discovery was incomplete.

SUMMARY JUDGMENT

The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966A(2). 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. LSA-C.C.P. art. 966A(3).

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.

Williams v. Liberty Mut. Fire Ins. Co., 16-0996 (La.App. 1 Cir. 3/13/17), 217 So.3d 421, 423, writ denied, 17-0624 (La. 6/5/17), 219 So.3d 338. 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. LSA-C.C.P. art. 966D(1); Williams, 217 So.3d at 424, citing Bufkin v. Felipe's Louisiana, LLC, 14-0288 (La. 10/15/14), 171 So.3d 851, 854.

A fact is "material" when its existence or nonexistence may be essential to the Plaintiff's cause of action under the applicable theory of recovery. 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. Simply put, a "material" fact is one that would matter on the trial on the merits. 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. Cheramie v. Port Fourchon Marina, Inc., 16-0895 (La.App. 1 Cir. 2/17/17), 211 So.3d 1212, 1216, writ denied. 17-0499 (La. 5/12/17), 221 So.3d 73, citing Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La.App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 17-0873 (La. 9/29/17), 227 So.3d 288.

An issue is genuine if reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Larson v. XYZ Ins. Co., 16-0745 (La. 5/3/17), 226 So.3d 412, 416. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith, 639 So.2d at 751.

APPLICABLE LAW

For purposes of the Merchant Liability Statute, LSA-R.S. 9:2800.6, "merchant" includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including lobby areas of or within the hotel, motel, or inn. LSA-R.S. 9:2800.6C(2). Mr. Primeaux's fall occurred at the front entrance area of the Best Western hotel, as he approached the lobby. Therefore, we agree with the parties that the Merchant Liability Statute applies to Mr. Primeaux's claims against the defendants.

Louisiana Revised Statute 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 burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

A merchant owes a duty to persons using his premises to exercise reasonable care to keep such premises in a reasonably safe condition. LSA-R.S. 9:2800.6A. The absence of an unreasonably dangerous condition implies the absence of a duty on the part of the defendant. Williams, 217 So.3d at 424, citing 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 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. Williams, 217 So.3d at 424. Failure to prove any one of the foregoing requirements is fatal to a plaintiff's case. Id.

A hazardous condition is one that creates an unreasonable risk of harm to customers under the circumstances. Pena v. Delchamps, Inc., 06-0364 (La.App. 1 Cir. 3/28/07), 960 So.2d 988, 991, writ denied, 07-0875 (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. Id. at 991. A merchant is not absolutely liable every time an accident happens. Williams, 217 So.3d at 424, citing Leonard v. Wal-Mart Stores, Inc., 97-2154 (La.App. 1 Cir. 11/6/98), 721 So.2d 1059, 1061.

Courts have adopted a four-part risk-utility balancing test to determine whether a condition is unreasonably dangerous. 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 plaintiff's activities in terms of its social utility or whether it is dangerous by nature. Williams, 217 So.3d at 425, citing Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La. 2/20/04), 866 So.2d 228, 235.

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. Williams, 217 So.3d at 425, citing Broussard v. State ex rel. Office of State Bldgs., 12-1238 (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., to everyone who may potentially encounter it. Id. at 425 ; citing Broussard, 113 So.3d at 184, 192 ; Caserta v. Wal-Mart Stores, Inc., 12-0853 (La. 6/22/12), 90 So.3d 1042, 1043 (per curiam).

In recent years, the Louisiana Supreme Court has made it clear that, 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. See Rodriguez v. Dolgencorp, LLC, 14-1725 (La. 11/14/14), 152 So.3d 871, 872 (per curiam ) (shopping cart that patron tripped over was open and obvious); Allen v. Lockwood, 14-1724 (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, 15-1808 (La. 11/16/15), 184 So.3d 21 (any danger presented by a concrete barrier on a vehicle ramp was "obvious and apparent to anyone who might potentially encounter it"). Therefore, summary judgment is proper when no legal duty is owed because the condition encountered is obvious and apparent to all and not unreasonably dangerous. Williams, 217 So.3d at 426, citing Moore v. Murphy Oil USA, Inc., 15-0096 (La.App. 1 Cir. 12/23/15), 186 So.3d 135, 145, writ denied. 16-00444 (La. 5/20/16), 191 So.3d 1066.

To grant summary judgment in the defendants' favor, this court must conclude, as did the trial court, that no genuine issue of material fact exists that the complained of condition did not create an unreasonable risk of harm.

DISCUSSION

Neither party challenges the trial court's evidentiary rulings. Therefore, in our de novo review, this court must consider Mr. Primeaux's exhibits filed in support of his original opposition to the defendants' motion and admitted by the trial court. Conversely, we do not consider the supplemental exhibits filed by Mr. Primeaux which were excluded by the trial court.

In support of the motion, the defendants relied on excerpts from Mr. Primeaux's deposition wherein he confirmed that photographs, also attached to the motion, accurately depicted the area where he fell. The photographs show that the portion of the curb which faces outward, toward pedestrians entering the hotel, is clearly painted yellow. The surface immediately above the painted area is light gray concrete while the area immediately below the painted curb is composed of dark gray brick. Mr. Primeaux fell very close to the entrance ramp which is covered by a red rug.

Mr. Primeaux and his family checked into the hotel two days before his fall, and he confirmed that he used the subject entryway on at least one prior occasion during his stay, without incident. Mr. Primeaux testified that the weather was sunny and dry, and the area was clear of debris. Nothing blocked Mr. Primeaux's view of the yellow curb prior to his fall. During Mr. Primeaux's deposition, defense counsel posed the question: "Did you trip because you just didn't lift your foot high enough?" Mr. Primeaux responded, "Apparently."

The defendants' evidence established that the curb was open and obvious and, therefore, was not unreasonably dangerous. Because the defendants satisfied their summary judgment burden of pointing out to the court the absence of factual support for one or more elements essential to Mr. Primeaux's claim, the burden shifted to Mr. Primeaux to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.

To this end, Mr. Primeaux relied on the affidavit of Mr. Wood. Mr. Wood opined that the Best Western's curb ramp violated various safety standards, including those established by the Americans with Disabilities Act and the Life Safety Code NFPA 101 (1997 edition). Particularly, Mr. Wood stated that the ramp is placed directly in front of the entryway doors contrary to safety standards which require a level landing to be placed between the door and the top of the curb ramp. According to Mr. Wood, "a tripping hazard is created when a curb ramp is placed directly in front of a main entry door(s). Ideally the curb ramp should never 'intrude' into an entry door's landing 'space'. The Codes do not allow elevation changes (maximum permitted 1? for every 4 feet) within an exterior entrance's floor surface." Mr. Wood further stated that the flared sides of the ramp do not slope at a 45 degree angle from the top of the curb ramp as required by safety codes, and the "sharp downward slope of the flared sides to the curb ramp 'bottom' does not meet the 1:10 maximum rule."

For several reasons, we find that Mr. Wood's affidavit does not create a genuine issue of material fact or demonstrate that the plaintiff will be able to succeed at trial. First, the defendants introduced the photograph wherein Mr. Primeaux identified the area where he fell as the outer portion of the curb which flanks the ramp. By Mr. Primeaux's own admission, he fell before he reached the ramp and the entryway door. Therefore, the slope of the ramp's sides from the top of the curb ramp and the absence of a level landing area between the door and the ramp are inconsequential.

Next, Mr. Wood's affidavit does not establish whether the particular codes upon which he relied to form his conclusions were applicable to the Best Western. All he offers in this regard is a statement that the Life Safety Code NFPA 101 (1997 edition), which requires a level landing to be placed between the ramp and the entrance doors, has "been on the books for decades." It is well settled, though, that buildings that predate the promulgation of building codes are "grandfathered in," meaning that existing structures not in compliance with new codes are not required to comply with the new codes, unless there is a major renovation. Williams v. ABC Ins. Co., 16-0345 (La.App. 1 Cir. 12/22/16), 209 So.3d 411, 415, citing Nugent v. Car Town of Monroe, Inc., 50,910 (La.App. 2 Cir. 9/28/16), 206 So.3d 369, 374. Mr. Primeaux failed to offer evidence to establish that the defendants were required to comply with the particular codes cited by Mr. Wood. Furthermore, compliance with building codes is only one factor to be considered in determining premises liability. Calcagno v. Kuebel, Fuchs Partnership, 01-691 (La.App 5 Cir. 11/14/01), 802 So.2d 746, 751, citing Turner v. Pointe Coupee Parish School Board, et al., 577 So.2d 755 (La.App. 1 Cir. 1991), writ denied, 580 So.2d 673 (La. 1991).

Finally, the purported code violations identified by Mr. Wood have no bearing on the issue of whether the alleged defect was open and obvious. Therefore, Mr. Wood's affidavit failed to create a genuine issue of material fact sufficient to defeat the defendant's motion. It is undisputed that the curb was painted yellow. We have reviewed the color photographs filed in support of the defendants' motion and agree with the trial court that the curb is clearly visible to approaching pedestrians exercising reasonable care.

We find this case to be similar to Williams v. Liberty Mutual, 217 So.3d 421, wherein this court affirmed the judgment granting the defendants' motion for summary judgment. There, the plaintiff fell from a curb onto the parking lot below as she exited a restaurant. Like the curb at issue here, there was nothing unique about the curb in Williams - it was "a basic curb." Id. at 428. However, unlike the curb upon which Mr. Primeaux fell, the curb at issue in Williams was not painted and, therefore, was not visually distinct from the surrounding concrete. Even so, finding the curb to be open and obvious, this court concluded that the curb was not unreasonably dangerous.

Similarly, in Eskine v. City of Gretna, 17-542 (La.App. 5 Cir. 3/14/18), 240 So.3d 338, the plaintiff was injured after his walker, which he used for mobility, slipped and rolled off of an elevated walkway, causing him to fall into a ditch below. The plaintiff sued the City of Gretna, as owner of the allegedly defective walkway, arguing that the walkway was defective and unreasonably dangerous because it was too narrow and was in a state of disrepair. Although the Merchant Liability Statute was not at issue in Eskine, the plaintiff in that case also bore the burden of proving that the walkway presented an unreasonable risk of harm through application of the risk-utility balancing test. Id. at 342. The defendants filed a motion for summary judgment, arguing that the allegedly dangerous condition of the walkway was open and obvious, therefore, the walkway was not unreasonably dangerous. In opposition to the motion, the plaintiff presented expert testimony to establish that the walkway was 18-20 inches in width in violation of a city ordinance which required the walkway to be 48 inches wide. Id. at 340-341. The trial court found that the condition of the walkway was open and obvious and granted the defendant's motion. The court of appeal affirmed, finding there was no evidence that the plaintiff's view of the walkway, and particularly, its deteriorated condition and narrow width, was obstructed or that there was any hidden defect. Although the walkway violated the city's ordinance, its width was open and obvious and could have been seen by the plaintiff and anyone who encountered it. Id. at 343-344.

Mr. Primeaux relies on Calcagno, 802 So.2d 746 and Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106 (La. 1990) to support his argument that the elevated curb in the Best Western's entryway presented an unreasonable risk of harm. Both Calcagno and Sistler are distinguishable. The plaintiff in Calcagno tripped on a curb that was, at one time, painted bright red but had since faded to a "pinkish, gray color." Id. at 748. The color of the faded paint created an optical illusion which disguised the change in elevation.

Similarly, in Sistler, the plaintiff tripped on a one-inch elevated landing in the entryway of a restaurant. The trial court and the Louisiana Supreme Court accepted the plaintiff's expert's opinion that the use of the same color tile on the landing and in the foyer created an illusion and gave the sense that no elevation existed. Id. at 1113-14. The expert opined that the landing created an unreasonable risk of harm because "[n]o warnings colors, the typical warning color being yellow, drew attention to the vertical face of the elevation." Id. at 1113.

Unlike the conditions discussed in Calcagno and Sistler , there is no allegation or evidence that the curb in the entryway of the Best Western created an optical illusion. Instead, by Mr. Primeaux's own admission, nothing prevented him from seeing it and nothing prevented him from using an alternative route, including the ramp, to avoid the curb. The photographs further confirm the yellow paint on the edge of the curb made it distinct from the rest of the entryway, thus, highlighting its existence. The evidence clearly establishes that the curb was readily apparent to all who encountered it.

Mr. Primeaux also argues that the trial court erred by granting the defendants' motion for summary judgment because discovery is on-going and not yet complete. This argument lacks merit. Louisiana Code Civil Procedure art. 966A(3) provides that a motion for summary judgment may be granted after an opportunity for adequate discovery if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. The requirement that a summary judgment should be considered only after "adequate discovery" has been construed to mean that there is no absolute right to delay action on a motion for summary judgment until discovery is complete; rather, the requirement is only that the parties have a fair opportunity to carry out discovery and to present their claim. Unless a party shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Montgomery v. Garry Lewis Properties, 17-1720 (La.App. 1 Cir. 8/10/18), 256 So.3d 391, 398, writ denied, 2018-1585 (La. 12/17/18), 258 So.3d 598, citing Welch v. East Baton Rouge Parish Metro. Council, 10-1532 (La.App. 1 Cir. 3/25/11), 64 So.3d 249, 254. See also Diversified Marine Servs., Inc. v. Jewel Marine, Inc., 16-0617 (La.App. 1 Cir. 6/2/17), 222 So.3d 1008, 1017.

Trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. It is not an abuse of the trial court's wide discretion in discovery matters to grant a motion for summary judgment before discovery has been completed. Dortch v. Jane Doe & Chrysler Grp., LLC, 16-0933 (La.App. 1 Cir. 4/6/17), 217 So.3d 449, 454, citing Duncan v. Poydras, 10-2094 (La.App. 1 Cir. 6/10/11), 68 So.3d 1184, 1186.

Mr. Primeaux attached the defendants' January 2017 discovery responses to his opposition to the motion for summary judgment to support his assertion that the defendants conceded that the motion was premature and that discovery was ongoing. The defendants began some of their responses to the plaintiff's requests for admission by stating, "...this request is premature as discovery is just beginning." They also began many of their responses to Mr. Primeaux's interrogatories and requests for production with what appears to be a boilerplate objection: "Defendants object to this request as overly broad, unduly burdensome and premature as discovery is ongoing. Defendants also object to this request to the extent it assumes an accident occurred. Defendants dispute that there was an accident on October 19, 2015. Subject to and without waiving said objection..." Notably, though, where these objections were made, the defendants also provided a substantive response to Mr. Primeaux's request.

Mr. Primeaux contended that, by raising these objections, the defendants failed to meaningfully participate in discovery; yet, there is no indication that Mr. Primeaux filed a motion to compel more complete discovery responses nor did he request a continuance in order to conduct additional discovery. Mr. Primeaux did not identify what, if any, additional discovery he intended to conduct. Considering this and the fact that this suit was pending for more than a year before the motion for summary judgment was filed, we find Mr. Primeaux was provided with an opportunity for adequate discovery. The trial court did not abuse its discretion in failing to require additional discovery prior to granting the defendants' motion for summary judgment. The trial court's judgment is affirmed.

CONCLUSION

For the foregoing reasons, we affirm the April 25, 2018 judgment of the trial court. Costs of this appeal are assessed to the plaintiff/appellant, Earl Primeaux.

JUDGMENT AFFIRMED.

      The petition also named the fictional ABC Insurance Company as a defendant. No actual insurance company was ever substituted as a defendant.

      According to Mr. Primeaux's petition, the premises is owned or operated by Best Western Plus Houma Inn and Cajun Lodging, LLC.

      The defendants also objected to Mr. Primeaux's statement of disputed material facts because it did not satisfy the requirements of Uniform Rules of Louisiana District Courts, Rule 9.10(b) in that it failed to reference citations or exhibits to prove that each fact was genuinely disputed. Finally, the defendants objected to the medical records attached to Mr. Primeaux's opposition because he included limited pages, rather than all records produced by the provider in response to the defendants' subpoena duces tecum.

      Mr. Primeaux challenges this finding and cites Mr. Wood's affidavit wherein he explained that "[t]he Codes" do not allow elevation changes within an exterior entrance's floor surface because a pedestrian who is making a transition in gait to enter a building is not focused at his feet or the floor. "A pedestrian's attention and 'cone of vision' is directed toward the door(s)." This comment was made in conjunction with Mr. Wood's opinion that the hotel's entryway violated safety standards due to the failure to provide a level landing between the entrance doors and the ramp. However, for reasons discussed herein, the absence of a landing has no bearing on the determination of whether the elevated, outer edge of the curb which caused the plaintiff's fall was unreasonably dangerous.

      In addition to Mr. Wood's supplemental affidavit, the trial court also excluded supplemental medical records attached to the plaintiff's opposition memorandum.

      This court has applied the Merchant Liability Statute to similar trip and falls occurring in the entryway of a restaurant. See Williams, 217 So.3d 421.

      Although under current law, we are statutorily obligated, pursuant to LSA-C.C.P. art. 966D(2), to consider expert opinions admitted by the trial court, the law is well settled that such opinions are insufficient to defeat summary judgment when they fail to create a genuine issue of material fact. See Talbert v. Restoration Hardware, Inc., 17-0986 (La.App. 1 Cir. 5/31/18), 251 So.3d 532, 539, writ denied, 18-1102 (La. 10/15/18), 253 So.3d 1304 ; Pontchartrain Nat. Gas Sys. v. Texas Brine Co., LLC, 18-0004 (La.App. 1 Cir. 6/6/18), 255 So.3d 644, 647-48, writ denied, 18-1431 (La. 12/3/18), 257 So.3d 1259 ; Cordell v. Tanaka, LLC, 17-0285 (La.App. 1 Cir. 1/4/18), 2018 WL 301331, *4 (unpublished), writ denied, 18-0235 (La. 4/6/18), 239 So.3d 827, granting the defendants' motion for summary judgment, finding the opinions of the plaintiff's expert were conclusory and insufficient to create a genuine issue of material fact. Conversely, see Hickman v. Exxon Mobil Corp., 17-0235 (La.App. 1 Cir. 7/18/18), 255 So.3d 1097, 1104-05, writ denied, 18-1463 (La. 11/20/18), 256 So.3d 996, wherein the summary judgment granted in favor of the defendants was reversed, because the opinions of the plaintiff's expert were sufficient to create a genuine issue of material fact.

      We also note that Sistler, 558 So.2d 1106, was decided prior to the 1996 tort reform and the abolition of strict liability for premises liability in Louisiana.

      In fact, Mr. Wood's affidavit does not specifically address the color of the curb.


source: Caselaw Access Project

author: Judge Joy Cossich Lobrano

license: Public Domain

text:
    Jerry MOORE, Jr., Individually and on Behalf of Minor, Jerry Moore, III, and Anitra Moore v. CHOICE FOUNDATION d/b/a Lafayette Academy Charter School, Karen Lewis, and XYZ Insurance Company
    NO. 2018-CA-0603
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 29, 2019
    Zara Zeringue, ZERINGUE & RICHARDSON, 527 E. Boston Street, Suite 201, Covington, LA 70433, COUNSEL FOR PLAINTIFFS/APPELLEES
    Edwin G. Preis, Jr., Robert M. Kallam, Charmaine B. Borne, PREIS PLC, 102 Versailles Boulevard, Suite 400, P. O. Box 94-C, Lafayette, LA 70509, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )
   Judge Joy Cossich Lobrano

This is an appeal from a default judgment in a personal injury case. Defendants/appellants, Choice Foundation d/b/a Lafayette Academy Charter School (the "school") and Karen Lewis ("Lewis"), appeal the October 19, 2017 default judgment in favor of plaintiffs/appellees, Jerry Moore, Jr., individually and on behalf of the minor Jerry Moore, III, and Anitra Moore (collectively, the "Moores"), and the April 2, 2018 denial of a motion for new trial. For the reasons that follow, we vacate the default judgment, reverse the denial of the motion for new trial, and remand this matter to the district court for further proceedings.

On August 2, 2016, the Moores filed a petition for damages, alleging that Jerry Moore, III ("Little Jerry") was injured when he fell down the stairs at school on August 19, 2015. According to the petition, Little Jerry is the minor son of Jerry Moore, Jr. and Anitra Moore ("Mr. and Mrs. Moore"). Little Jerry is non-verbal, autistic, and requires constant monitoring and assistance while at school. The petition states that Lewis was a paraprofessional employed by the school and assigned to Little Jerry. The Moores allege Lewis was negligent in failing to properly supervise Little Jerry, and the school was vicariously liable for Lewis' negligence. Also, according to the petition, the school was negligent for failing to remedy a hazardous condition of the stairs.

When none of the defendants filed an answer to the petition, the Moores filed motions for preliminary default on October 26, 2016. On November 4, 2016, the district court entered a preliminary default against Lewis and the school.

Nearly a year later, on October 19, 2017, the district court held a hearing at which the Moores moved to confirm the default judgment. On the same date, the district court confirmed the default judgment against Lewis and the school "in solido and under theory of respondeat superior" and awarded the Moores damages in the amount of $ 417,249.32, together with interest from the date of judicial demand until paid and all costs of the proceedings. On October 31, 2017, Lewis and the school filed a motion for new trial. Following a hearing on March 9, 2018, the district court denied a new trial in its judgment dated April 2, 2018. This appeal followed.

The primary issue before this Court is whether the Moores proved a prima facie case of negligence with competent, admissible evidence.

The district court has "broad discretion in [ ] granting or denying a motion for new trial, and we review a denial under an abuse of discretion standard." Bonnette v. Bonnette , 2015-0239, pp. 22-23 (La. App. 4 Cir. 2/17/16), 185 So.3d 321, 334. Article 1972(1) of the Louisiana Code of Civil Procedure provides that "[a] new trial shall be granted, upon contradictory motion of any party ... when the verdict or judgment appears clearly contrary to the law and the evidence."

"In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment." Arias v. Stolthaven New Orleans, L.L.C. , 2008-1111, p. 5 (La. 5/5/09), 9 So.3d 815, 818. "This determination is a factual one governed by the manifest error standard of review." Id.

"Confirmation of a default judgment is similar to a trial and requires, with admissible evidence, 'proof of the demand sufficient to establish a prima facie case.' " Id. , 2008-1111, p. 7, 9 So.3d at 820 (quoting La. C.C.P. art. 1702(A) )(other citations omitted). "The elements of a prima facie case are established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant." Id. (citing Sessions & Fishman v. Liquid Air Corp. , 616 So.2d 1254, 1258 (La. 1993) ; Thibodeaux v. Burton , 538 So.2d 1001, 1004 (La. 1989) ).

The Louisiana Supreme Court has made clear that inadmissible evidence "may not support a default judgment even though it was not objected to because the defendant was not present." Arias , 2008-1111, p. 7, 9 So.3d at 820 (citations omitted). Rather, the rules of evidence apply at a hearing to confirm a default judgment, subject to certain legislative exceptions. La. C.E. art. 1101(A) ; see also La. C.C.P. art. 1702(B)(2).

Louisiana Code of Evidence article 801(C) defines hearsay as a "statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." Generally, hearsay evidence is not admissible evidence. La. C.E. art. 802. Moreover, "[h]earsay evidence does not sustain the burden of proving the prima facie case necessary for confirmation of default." Cameron v. Roberts , 47,789, p. 7 (La. App. 2 Cir. 2/27/13), 111 So.3d 438, 443 ; see Cunningham v. M & S Marine, Inc. , 2005-0805, p. 4 (La. App. 4 Cir. 1/11/06), 923 So.2d 770, 773. "Hearsay is treated as unreliable because it is based on statements by individuals who are not before the court, have not been sworn and are not available for cross examination." Ross v. City of New Orleans , 2000-1879, p. 14 (La. App. 4 Cir. 11/21/01), 808 So.2d 751, 761 ; Crescent City Const., Inc. v. Camper , 2003-1727, p. 6 (La. App. 1 Cir. 12/30/04), 898 So.2d 408, 413.

The Moores' claims against Lewis and the school sound in negligence. The duty/risk analysis is the standard negligence analysis our Court employs in determining whether to impose liability under La. C.C. art. 2315. Lemann v. Essen Lane Daiquiris, Inc. , 2005-1095, p. 7 (La. 3/10/06), 923 So.2d 627, 632-33. As stated by the Supreme Court:

in order for liability to attach under a duty/risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element).

Mathieu v. Imperial Toy Corp. , 94-0952, pp. 4-5 (La. 11/30/94), 646 So.2d 318, 322. "A negative answer to any of the inquiries of the duty/risk analysis results in a determination of no liability." Id. , 94-0952, p. 11, 646 So.2d at 326.

Reviewing the record before us, we find that the default judgment was contrary to the law and the evidence because the Moores failed to prove a prima facie case of negligence. Specifically, no competent, admissible evidence of breach of duty or causation was presented.

No eyewitness to Little Jerry's accident testified. No one testified who had any personal knowledge of how Little Jerry's accident occurred. The only evidence in the record of how the accident occurred is hearsay, which is inadmissible. To establish how the accident happened, the Moores rely on an accident report purportedly signed by Lewis, which is hearsay. Likewise, Mr. and Mrs. Moore testified, both in court and via affidavit, to what other people (Lewis and unidentified individuals associated with the school) told them happened to Little Jerry on the day of his injury at school. This is also hearsay and further demonstrates a lack of personal knowledge of the facts of the accident.

The Moores fail to identify any exception to the hearsay rules, and we find none, that applies here. Louisiana courts have found witness statements that are not in affidavit form and unauthenticated accident reports insufficient to establish a prima facie case on a default judgment. Triple S Marine, L.L.C., v. Daigle Towing Serv., L.L.C. , unpub., 2009-1506, p. 3 (La. App. 1 Cir. 7/29/10), 2010 WL 2964267. Martin v. Sanders , 35,575, p. 4 (La. App. 2 Cir. 1/23/02), 805 So.2d 1209, 1212. Similarly, courts of this state have found that affidavits or testimony, not based on firsthand knowledge of an accident, likewise fail to establish a prima facie case. See, e.g. , Jackson v. Reed , 47,293, pp. 5-6 (La. App. 2 Cir. 5/29/13), 116 So.3d 977, 981 ; Triple S Marine, L.L.C. , 2009-1506, p. 3, 2010 WL 2964267 ; Crescent City Const., Inc. , 2003-1727, p. 9, 898 So.2d at 415. See also Parker v. Schneider , 2014-0232, p. 4 (La. App. 4 Cir. 10/1/14), 151 So.3d 679, 682 (citing La. C.E. art. 602 and stating "[a]ffidavits must be based upon the personal knowledge of the affiant").

Purged of hearsay, the record evidences that (1) Little Jerry's special needs warrant a high level of supervision at school; and (2) Little Jerry sustained a serious injury while at school. This evidence does not prove negligence. If a plaintiff fails to prove any element of the duty/risk analysis, a defendant can have no liability for negligence. Lemann , 2005-1095, p. 7, 923 So.2d at 633. Even if the record evidence supports that a duty existed and the Moores sustained damages, the Moores have failed to show that Lewis or the school breached any duty owed them or that such a breach of duty caused their damages. They have not shown that Lewis did anything wrong with respect to Little Jerry's descent on the stairs or even that the accident occurred on the stairs in question. In the absence of competent evidence, they also have not shown that either Lewis' actions or any condition of the stairs caused Little Jerry's injuries. We find no law permitting an inference that, because a duty may exist for a special needs child and because the child fell, that duty was breached, or such a purported breach of duty caused the damages in question. Without any eyewitness testimony to the accident, or any other competent, admissible evidence of how the accident occurred, the Moores have not proven a prima facie case of negligence.

We further recognize that the Moores could have called Lewis as an eyewitness to the accident, but did not. Lewis was served with the petition, and no evidence in the record shows that she could not be located or is otherwise unavailable. This Court has held that the "unexplained failure of a party to call a witness who possesses peculiar knowledge of material facts pertinent to the resolution of the case entitles the opposing party to a presumption that the witness's testimony would be unfavorable." Goldfinch v. United Cabs, Inc. , 2008-1447, p. 9 (La. App. 4 Cir. 5/13/09), 13 So.3d 1173, 1180 (citations omitted). Because of the Moores' unexplained failure to introduce Lewis' testimony substantiating the circumstances of Little Jerry's accident, we presume that Lewis' testimony would have been unfavorable to the Moores' case.

For these reasons, we find that the district court was manifestly erroneous in concluding that the Moores proved a prima facie case to support the judgment by default. Because the default judgment was confirmed in the absence of competent, admissible evidence supporting a prima facie case of negligence, the judgment is contrary to the law and the evidence, and a new trial should have been granted by the district court. See Goldfinch , 2008-1447, p. 11, 13 So.3d at 1181 ; Cameron , 47,789, p. 12, 111 So.3d at 445 ; La. C.C.P. art. 1972(1).

Accordingly, for the reasons set forth in this opinion, we vacate the default judgment, reverse the judgment denying the motion for new trial, and remand this case to the district court for further proceedings.

DEFAULT JUDGMENT VACATED; JUDGMENT DENYING NEW TRIAL REVERSED; REMANDED

JENKINS, J., DISSENTS WITH REASONS

ATKINS, J., DISSENTS AND ASSIGNS REASONS

JENKINS, J., DISSENTS WITH REASONS

I respectfully dissent with majority's conclusion that the Moores did not establish a prima facie case of negligence with competent, admissible evidence. Specifically, the majority rejects the sufficiency of proof only with respect to the cause-in-fact and breach of duty elements of negligence.

According to Black's Dictionary, prima facie evidence is sufficient to establish a given fact, or the group or chain of facts constituting the parties' claim or defense, and if not rebutted or contradicted will remain sufficient. It is evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but which may be contradicted by other evidence. BLACK'S LAW DICTIONARY 1190 (6th ed. 1990).

The elements of a prima facie case are established with competent evidence that convinces the court that it is probable that the plaintiff would prevail at trial on the merits. McIntyre v. Sussman , 10-1281, p. 7 (La. App. 4 Cir. 10/26/11), 76 So.3d 1257, 1262.

In order for a plaintiff to obtain a default judgment, "he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant." "In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits." A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim. "There is a presumption that a default judgment is supported by sufficient evidence, but this presumption does not attach when the record upon which the judgment is rendered indicates otherwise."

Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La. 1993) (citations omitted).

The determination of whether there is sufficient proof to support a default judgment is a question of fact that should not be disturbed on appeal unless it is manifestly erroneous. Xavier Univ. of Louisiana v. Coleman , 18-0660, p. 2 (La. App. 4 Cir. 10/3/18), 257 So.3d 730, 732.

The substantial admissible, competent evidence presented at the confirmation trial includes the following taken from the affidavits of the Moores:

• Little Jerry is a 13-year-old, non-verbal child with Autism Spectrum Disorder.
• Little Jerry requires 24-hour supervision when moving about the house, getting in and out of vehicles, going up and down stairs, eating, using the bathroom, bathing, attending to personal needs, dressing and hygiene.
• Ms. Moore and her husband enrolled Little Jerry in Lafayette in the fall of 2014, choosing that school over others because it provided a paraprofessional who would assist Little Jerry at all times, providing constant supervision to him, while also allowing him to interact with other children.
• Prior to attending Lafayette, Mr. and Mrs. Moore attended a meeting at the school to discuss Little Jerry's special needs, noting his poor coordination, spatial difficulties, and being prone to seizure disorders, for which he took medication.
• Mrs. Moore specifically advised the school that Little Jerry would need assistance with "going up and down the stairs because he did not like to look down while going down stairs."
• Mrs. Moore also told the school Little Jerry would raise his arms above his head while descending stairs.
• Ms. Lewis was assigned as Little Jerry's paraprofessional for the full year prior to the date of his injury at school.
• Mrs. Moore stated that, on August 19, 2015, she received a call from Ms. Lewis and immediately went to pick up Little Jerry at school.
• Mrs. Moore said that when she arrived, Little Jerry was being brought out of the school in a wheel chair, and she had to lift him and put him into her car in order to bring him home.
• Mrs. Moore noted that Little Jerry had swelling in the knees, left ankle, shoulder scratches, and a left swollen elbow.

Here, this competent, admissible evidence convinced the trial court that it was probable that the Moores would prevail at trial. First, Little Jerry left home for school on August 19, 2015, without any injuries. Lafayette knew Little Jerry had special needs and required 24-hour supervision, including during his time at school. While he was at school that day, Little Jerry was, in fact, supposed to be under the constant supervision by a paraprofessional who knew that Little Jerry needed special assistance. The school, through its agents and teachers, owed a duty of reasonable supervision over Little Jerry. See Wallmuth v. Rapides Parish Sch. Bd. , 01-1779, 01-1780 (La. 4/03/02), 813 So.2d 341, 346. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Id. In essence, when the school accepts custody, it stands in the shoes of the parent regarding the authority to control the student while there; in turn, it must also assume the responsibility to supervise. Huey v. Caldwell Parish Sch. Bd. , 47,704, p. 6 (La. App. 2 Cir. 1/16/13), 109 So.3d 924, 928.

There is no dispute that when Little Jerry was injured, he was in the school's custody and control, where he was supposed to be receiving constant supervision based upon his special needs. On the same day he left for school, Mrs. Moore received a phone call from Ms. Lewis, and left to pick up Little Jerry at school. When Mrs. Moore arrived, Little Jerry was in a wheel chair, with swelling in the knees, left ankle, shoulder scratches, and a left swollen elbow. A week later, Little Jerry was diagnosed femoral neck fracture.

With respect to the breach of duty issue, I would find that the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if the school had exercised the requisite degree of supervision. See Wallmuth , 01-1779, 01-1780, p. 8, 813 So.2d at 346.

The trial court properly found that the school and Ms. Lewis were liable for Little Jerry's injuries because, with knowledge that he had special needs and required constant care and supervision, the school and Ms. Lewis failed to protect Little Jerry from foreseeable harm.

ATKINS, J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent. I would affirm the denial of the motion for new trial and the confirmation of the default judgment rendered by the district court. I find that the district court did not abuse its discretion in denying the motion for new trial and did not err in confirming the default judgment.

Although the majority's opinion finds there was no competent, admissible evidence to establish a prima facie case of negligence, I find that the affidavits and testimony of Ms. Moore and Mr. Moore, without considering hearsay evidence, is sufficient to support a finding of negligence and the confirmation of default judgment.

"In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment." Habitat, Inc. v. Commons Condominiums, LLC , 2011-1384, p. 8 (La. App. 4 Cir. 7/11/12), 97 So.3d 1126, 1132 (citing Bordelon v. Sayer , 2001-0717, p. 3 (La. App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235 ). "This determination is a factual one governed by the manifest error standard of review." Id. A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that was manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Transp. and Development , 617 So.2d 880, 882, n. 2 (La. 1993).

At the hearing on the confirmation of default judgment, Plaintiffs offered the testimony and affidavits of Jerry and Anitra Moore.

Ms. Moore reported in her affidavit that her son Little Jerry was a thirteen-year-old, non-verbal child with Autism Spectrum Disorder ("ASD"). Although unable to communicate, Ms. Moore described Little Jerry as highly active and social. She explained that Little Jerry requires twenty-four-hour supervision when moving about the house, getting in and out of vehicles, traversing stairs, eating, using the bathroom, bathing, attending to personal needs, dressing and hygiene. Ms. Moore and her husband enrolled Little Jerry in Lafayette Academy in the fall of 2014, choosing that school over others because it provided a paraprofessional who would assist Little Jerry at all times, providing constant supervision to him while also allowing him to interact with other children. Prior to attending Lafayette Academy, Mr. and Ms. Moore attended a meeting at the school to discuss Little Jerry's special needs, noting his poor coordination, spatial difficulties, and being prone to seizure disorders, for which he took medication. Ms. Moore stated that she specifically advised the school that Little Jerry would need assistance with "going up and down the stairs because he did not like to look down while going down stairs." She explained that Little Jerry would also raise his arms above his head while descending stairs. Lafayette Academy indicated they had an experienced paraprofessional, and they assigned Lewis to supervise Little Jerry.

In her affidavit, Ms. Moore reported that, on August 19, 2015, she received a call from Lewis and immediately had to pick up Little Jerry at school because he had fallen on the playground and was crying. Ms. Moore testified that Little Jerry was brought out of the school in a wheelchair and she had to lift him and put him into her car in order to bring him home. Because he is non-verbal, Little Jerry could not tell his mother what had occurred. Ms. Moore noted that Little Jerry had swelling in the knees, left ankle, shoulder scratches, and a left swollen elbow. Ms. Moore and her husband decided to take Little Jerry to a hospital, and Little Jerry was treated at the emergency room. Ms. Moore also attested that Ms. Lewis sent her photographs of the location where the accident occurred, the stairs near the school playground area. These photos were admitted into evidence.

Ms. Moore indicated in her affidavit that, after she and her husband took Little Jerry to the emergency room on August 19, 2015, he was sent home with a diagnosis of "right knee swelling" and "left shoulder swelling" but no testing was performed. She also testified that, at first, Little Jerry would not even stand and would "crawl around." After a few days, he would pull up and stand up while holding on to something. He would whine and cry but could not tell his parents what was wrong. She indicated that Little Jerry seemed agitated and in pain - he was also still exhibiting right knee and left shoulder swelling. On August 24, 2015, Mr. and Ms. Moore took Little Jerry back to the emergency room and a CT scan was performed which indicated a femoral neck fracture to the hip. Little Jerry was immediately admitted to the hospital for surgical hip repair.

Considering the aforementioned evidence, I find that Plaintiffs sufficiently supported their default judgment, based on a theory of general negligence, with competent, admissible evidence, and that Plaintiffs would prevail at trial. The majority is correct that neither Ms. Moore nor Mr. Moore were eyewitnesses to the accident, as neither was physically present at the time their son was injured. Furthermore, unlike most plaintiffs, Little Jerry is incapable of testifying to the circumstances that led to his injury. However, without considering hearsay evidence, the testimony of Mr. and Ms. Moore established that their son, Little Jerry, a thirteen-year-old, non-verbal, autistic child, was placed in the Defendants' custody and care on August 19, 2015; that Ms. Moore was required to pick him up from Lafayette Academy that afternoon after receiving a call from the school to do so; that Little Jerry was presented to her in a wheelchair and bore signs of physical injury; that Little Jerry was subsequently treated at the emergency room; and, upon a return trip to the hospital, medical professionals discovered that Little Jerry had sustained a femoral neck fracture, which required surgery and follow-up care.

The testimony and affidavits offered by Mr. and Ms. Moore also demonstrated that Defendants were placed on notice regarding Little Jerry's limitations and, in particular, that Little Jerry would need assistance using the stairs. Defendants, through its agents, failed to conform their conduct to an appropriate standard of care, in light of their assumed obligation in caring for a child with disabilities, therefore breaching the duty that they owed to Little Jerry. A school board, through its agents and teachers, is responsible for reasonable supervision over students. Wallmuth v. Rapides Parish School Bd. , 2001-1779, 2001-1780 (La. 04/03/02), 813 So.2d 341, 346 ; Adams v. Caddo Parish Sch. Bd. , 25,370 (La. App. 2 Cir. 1/19/94), 631 So.2d 70, 73. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Wallmuth , 2001-1779, 2001-1780 at p. 8, 813 So. 2d at 346. In essence, when the school accepts custody, it stands in the shoes of the parent regarding the authority to control the student while there; in turn, it must also assume the responsibility to supervise. Frederick v. Vermilion Parish Sch. Bd. , 2000-382, p. 4 (La. App. 3 Cir. 10/18/00), 772 So.2d 208, 212.. For a breach of a school's duty to adequately supervise the safety of students to be found, "the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised." S.J. v. Lafayette Parish Sch. Bd ., 2009-2195, p. 9 (La. 07/06/10), 41 So.3d 1119, 1125 ; Wallmuth, 2001-1779, 2001-1780 at p. 8, 813 So.2d at 346.

The risk of harm to Little Jerry was foreseeable, constructively or actually known to Defendants. Wallmuth , 2001-1779, 2001-1780 at p. 8, 813 So.2d at 346. Mr. and Ms. Moore's statements established that Defendants were aware that Little Jerry required assistance going up and down the stairs. Had Defendants exercise reasonable care in supervising Little Jerry, the incident could have been prevented.

I find that the district court did not err in confirming the default judgment. Additionally, I do not find that the default judgment was contrary to the law and the evidence and thus the district court did not abuse its discretion in denying the motion for new trial.

      Lewis and the school set forth four assignments of error on appeal, as follows:
      1. The trial court abused its discretion denying Defendants' Motion for a New Trial by not reviewing and considering, in a proper manner, all circumstances which contributed to Defendants' responsive pleadings not being filed prior to the confirmation of default judgment, and especially in light of general policy considerations weighing in Appellants' favor to allow them their day in court;
      2. The trial court erred, as a matter of law, in confirming a default judgment where Plaintiffs did not make a prima facie case entitling Plaintiffs to judgment in their favor;
      3. The trial court committed manifest error in rendering a default judgment that was contrary to the law and evidence presented; and
      4. The trial court erred, as a matter of law, when it denied the motion for a new trial, as the judgment clearly did not apportion fault between the parties.

      A motion for new trial is a non-appealable interlocutory judgment, which an appellate court may review as part of an unrestricted appeal from a final judgment. State ex rel. Dep't of Soc. Servs. v. Whittington , 2015-1118, p. 11 (La. App. 4 Cir. 5/18/16), 193 So. 3d 1234, 1241. A default judgment is generally a final, appealable judgment. See Habitat, Inc. v. Commons Condominiums, LLC , 2011-1384, p. 6 (La. App. 4 Cir. 7/11/12), 97 So.3d 1126, 1131. See also La. C.C.P. art. 2083(A) ("[a] final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814").

      Pursuant to La. C.C. art. 2315(A), "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."

      This Court explained the personal knowledge requirement for affidavits as follows:
      The affiant must affirmatively establish that he is competent to testify to the matters stated by a factual averment showing how he came by such knowledge. Barnes v. Sun Oil Co. , 362 So.2d 761, 763 (La. 1978). Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. Hibernia Nat. Bank v. Rivera , 07-962, pp. 8-9 (La. App. 5 Cir. 9/30/08), 996 So.2d 534, 539. The purpose of the requirement of "personal knowledge" is to limit the affidavit to facts which the affiant saw, heard, or perceived with his own senses. Id.
      Parker , 2014-0232, p. 4, 151 So.3d at 682 (quoting Foundation Materials, Inc. v. Carrollton Mid-City Investors, L.L.C. , 2010-0542, p. 7 (La. App. 4 Cir. 5/25/11), 66 So.3d 1230, 1234-35 ).

      Because we have decided this appeal on the basis that the evidence was insufficient to support the judgment, we do not reach Lewis' and the school's remaining arguments regarding the insurance carrier's inaction in appointing counsel to represent them or the lack of language in the judgment regarding apportionment of fault.


author: Judge Regina Bartholomew-Woods

text:
    Lisa JEAN v. JAMES RIVER INSURANCE COMPANY
    NO. 2019-CA-0041
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 29, 2019
    Thomas Corrington, THE CORRINGTON LAW FIRM, 3431 Prytania Street, New Orleans, LA 70115, COUNSEL FOR PLAINTIFF/APPELLANT
    Jonathan B. Womack, Paula M. Wellons, TAYLOR WELLONS POLITZ & DUHE, APLC, 1515 Poydras Street, Suite 1900, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods )
   Judge Regina Bartholomew-Woods

Both Appellant and Appellee filed motions for summary judgement relating to the interpretation of La. R.S. 45:201.6 and La. R.S. 22:1295(1)(a)(i)-(ii), and whether Transportation Network Companies, such as Uber, are permitted to waive underinsured motorist coverage during the pre-trip acceptance period. Reading La. 45:201.1 in para materei with La. R.S. 22:1295, the trial court granted summary judgment in favor of Appellee and dismissed, with prejudice Appellant's claims. It is from this judgment that Appellant appeals. For the reasons that follow, we affirm the trial court's judgment.

FACTUAL HISTORY AND PROCEDURAL BACKGROUND

Plaintiff-Appellant, Lisa Jean ("Appellant"), while driving for UBER, was involved in a motor vehicle accident on September 17, 2016, when a vehicle driven by Mr. Ty Cao pulled out from a parking spot and struck her vehicle. After settling her claims against Mr. Cao - through his insurer, Progressive, for the policy limits - Appellant filed a claim for underinsured motorist benefits under the policy provided by Defendant-Appellee, James River Insurance Company ("Appellee"). Appellee denied Appellant's claim for underinsured motorist benefits asserting that the underinsured motorist benefits had been waived by the insured, Rasier, LLC, a subsidiary of Uber ("Uber"). Thereafter, Appellant filed a petition for damages, and asserted that Appellee's policy must provide underinsured motorist coverage pursuant to La. R.S. 45:201., et seq. , and that the underinsured motorist coverage cannot be waived by Uber, pursuant to La. R.S. 22:1295. Subsequently, both Appellant and Appellee submitted motions for summary judgment to determine whether La. R.S. 45:201.1 et seq., permits Transportation Network Companies, such as Uber, to waive the underinsured motorist coverage. At the conclusion of the hearing on the motions for summary judgment, on October 5, 2018, the trial court ruled that the statute allows transportation companies to waive underinsured motorist coverage. It is from the trial court's October 31, 2018 judgment granting Appellee's motion for summary judgment and dismissing with prejudice Appellant's claims that Appellant now appeals.

DISCUSSION

In summary, Appellant's assignments of error focus on whether, pursuant to La. R.S. 45:201.6, Transportation Network Companies are permitted to waive underinsured motorist coverage; more specifically, whether La. R.S. 45:201.6(B)(2) prohibits Transportation Network Companies from waiving underinsured motorist coverage in a manner permitted by La. R.S. 22:1295.

Appellant argues that La. R.S. 45:201.6(B)(2) implicitly requires that underinsured motorist coverage can be no less than the liability limits. Conversely, Appellee asserts that, pursuant to La. R.S. 22:1295(1)(a)(i)-(ii), Uber is not prohibited from waiving underinsured motorist insurance, and executed a valid waiver of underinsured motorist coverage.

Standard of Review

The issue on appeal involves the interpretation of La. R.S. 45:201.1 et seq. and La. R.S. 22:1295 that arose through the filing of a motion for summary judgment. Based on the aforementioned, the interpretation of a statute is a question of law, and therefore, is subject to de novo review. Benjamin v. Zeichner , 2012-1763, p. 5 (La. 4/5/13), 113 So.3d 197, 201. Further, the Louisiana Supreme Court has explained that "[w]hen summary judgment is granted in the context of statutory interpretation, there are no material issues of fact in dispute, and the sole issue before the reviewing court is a question of law as to the correct interpretation of the statute at issue." Billeaudeau v. Opelousas Gen. Hosp. Auth. , 2016-0846, pp. 9-10 (La. 10/19/16), 218 So.3d 513, 520 ; Vizzi v. Lafayette City-Parish Consol. Government , 2011-2648, p. 2 (La. 7/2/12), 93 So.3d 1260, 1262.

Law and Analysis

"The starting point for interpretation of any statute is the language of the statute itself."

State v. Williams , 2010-1514, p. 6 (La. 3/15/11), 60 So.3d 1189, 1192. "[A] fundamental principle of statutory interpretation [is] that when a 'law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied a[s] written, and no further interpretation may be made in search of the intent of the legislature.' " McLane S., Inc. v. Bridges , 2011-1141, pp. 5-6 (La. 1/24/12), 84 So.3d 479, 483 ; Harrah's Bossier City Inv. Co., LLC v. Bridges, 2009-1916 (La. 5/11/10), 41 So.3d 438, 446-447 (citing La. C.C. art. 9).

La. R.S. 45:201.6, in pertinent part, states that a "transportation network company driver or a transportation network company on the driver's behalf shall maintain primary automobile insurance" during the pre-trip acceptance period that shall "[i]nclude uninsured and underinsured motorist coverage to the extent required by La. R.S. 22:1295." Further, when La. R.S. 22:1295 is read in para materi with La. R.S. 45:201.6 it provides, in pertinent part, that "the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (1)(a)(ii) of this Section," which provides that "[s]uch rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative." Here, the record reflects and Appellant does not disagree that Uber did execute an underinsured motorist coverage waiver form pursuant to La. R.S. 22:1295(1)(a)(i)-(ii). The crux of Appellant's argument is that Uber is prohibited from waiving underinsured motorist coverage. However, La. 45:201.6 read in para materei with La. R.S. 22:1295(1)(a)(i)-(ii) permits Uber to waive underinsured motorist coverage. Thus, Appellant's argument lacks merit, and the trial court correctly granted summary judgment in favor of Appellee.

CONCLUSION

For the aforementioned reasons, we affirm the trial court's judgment granting summary judgement in favor of Appellee and dismissing with prejudice Appellant's claims.

AFFIRMED

DYSART, J., CONCURS, WITH REASONS.

DYSART, J., CONCURS, WITH REASONS.

I agree with the majority result but write separately to express my understanding of the "Uber" statute. The sole issue to be decided is whether La. R.S. 45:201, et seq. , commonly referred to as "The Transportation Network Company Motor Vehicle Responsibility Law," allows for an insured (here Uber) to waive uninsured/underinsured motorist coverage.

The statute delineates between the period of time following when an Uber driver is logged on to the transportation network company's digital network and is available to receive transportation requests (known as the "pre-trip acceptance period"), and the period after the ride enters the vehicle (known as the "pre-arranged ride period"). In this case, the accident took place before the plaintiff (the Uber driver) accepted a passenger, and was therefore during the "pre-trip acceptance period."

Louisiana Revised Statute 45:201.6B(1) and (2) provide as follows:

A. A transportation network company driver or a transportation network company on the driver's behalf shall maintain primary automobile insurance that meets the requirements of this Section.
B. Automobile insurance during the pre-trip acceptance period shall:
(1) Be in the amount of not less than fifty thousand dollars for death and bodily injury per person, not less than one hundred thousand dollars for death and bodily injury per incident, and not less than twenty-five thousand dollars for property damage.
(2) Include uninsured and underinsured motorist coverage to the extent required by R.S. 22:1295.

During the pre-trip acceptance period, La. R.S. 45:201.6B (1) requires minimum liability limits of 50,000/100,000. The subsection also requires that the policy provide uninsured/underinsured coverage.

Plaintiff maintains that the statute specifically mandates uninsured/underinsured motorist coverage and the reference to La. R.S. 22:1295 is only to inform the insurer of the required amount of UM coverage. Thus, it is non-waivable.

Conversely, the defendant argues that since the statute specifically allows for coverage to be provided "to the extent required by R.S. 22:1295," waiver is allowable.

A review of the legislative history of 2015 La. Act 266 indicates that mandated uninsured/underinsured motorist coverage was never contemplated during the pre-trip acceptance period. Rather, the reference to La. R.S. 22:1295 confirms that uninsured/underinsured motorist coverage could be waived. Thus, the legislative history supports the defendant's position that uninsured/underinsured motorist coverage is waivable.

Accordingly, as Uber executed a valid uninsured/underinsured motorist coverage waiver, there is no coverage afforded to the plaintiff.

      Both Appellant and Appellee agree that the underlying facts are neither disputed, nor at issue on appeal.

      Appellee specifies that Appellant was in the pre-trip acceptance period for which Appellee issued a policy of liability. The pre-trip acceptance period is defined by La. R.S. 45:201.4(5) as "any period of time during which a driver is logged on to the transportation network company's digital network and is available to receive transportation requests but is not engaged in a prearranged ride as defined in Paragraph (4) of this Section."

      Appellant was driving her 2012 Honda Civic along Prytania Street, near the intersection of Pleasant Street, in New Orleans, Louisiana.

      In her petition for damages, Appellant asserted that Mr. Cao's insurance policy was insufficient to compensate for her damages.

      Appellant carried a personal automobile policy provided by AIG, which provided underinsured motorist coverage. However, because Appellant was in the pre-trip acceptance period, her personal policy was not in effect; instead the policy provided by Appellee was in effect.

      Also referred to as the Transportation Network Company Act.

      The trial court provided written reasons for judgment.

      On November 20, 2018, appellant filed a motion for devolutive appeal with the trial court. On November 26, 2018, the trial court signed an Order granting Appellant's motion for devolutive appeal.

      La. R.S. 45:201.6(B)(2) provides that automobile insurance during the pre-trip acceptance period shall include uninsured and underinsured motorist coverage to the extent required by [La.] R.S. 22:1295.

      Effective January 1, 2016.