311 So.3d 1083
La. Ct. App.2020Background
- On October 26, 2013, Lucille Jefferson tripped on an uneven sidewalk at Nicholls State University; the elevation difference was measured at approximately 1.75 to 2.0 inches.
- Jefferson sued the State of Louisiana (Board of Supervisors of the University of Louisiana System) under La. R.S. 9:2800 alleging the defect created an unreasonable risk and that the State had constructive notice.
- The State moved for summary judgment, supporting the motion with an affidavit from Brian Clausen (Nicholls Director of Safety) attesting no prior reports or knowledge of the defect and photos documenting the elevation.
- Jefferson opposed with an affidavit from safety engineer Warren Dietz Jr., who opined the uplift developed gradually, would have been identifiable years earlier, and that the university should have performed more frequent inspections.
- The district court granted summary judgment for the State, finding Jefferson failed to show the State had constructive notice of the defect; the court dismissed the petition with prejudice.
- On appeal the court affirmed, focusing on constructive notice: Dietz’s opinions were held speculative and insufficient to show the defect existed long enough that reasonable diligence would have discovered and repaired it; absence of prior complaints/information weighed for the State.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by failing to consider plaintiff's expert engineer affidavit on unreasonable risk | Jefferson: the engineer's affidavit established the sidewalk presented an unreasonable risk and supported denial of summary judgment | State: even if considered, other elements (constructive notice) are lacking and summary judgment is proper | Court pretermitted detailed ruling on unreasonable-risk affidavit because Jefferson failed to show constructive notice, an essential element; no reversal on this ground |
| Whether there is a genuine issue of material fact that the State had constructive notice of the sidewalk defect | Jefferson: Dietz opined the uplift developed gradually, would have been identifiable years earlier, and inspections should have detected it | State: Clausen’s affidavit and absence of prior reports show no actual or constructive notice; Dietz’s opinions are speculative and lack proof of defect duration or inspection history | Held for State: Dietz’s general opinions insufficient to create genuine dispute about how long the defect existed; summary judgment affirmed |
Key Cases Cited
- Apache Corp. v. Talen; Marine & Fuel, LLC, 242 So. 3d 619 (La. App. 1st Cir. 2018) (appellate standard of review and summary judgment criteria)
- Chambers v. Village of Moreauville, 85 So. 3d 593 (La. 2012) (elements for public-entity liability under La. R.S. 9:2800)
- Clark v. East Baton Rouge Parish Dep’t of Public Works, 248 So. 3d 409 (La. App. 1st Cir. 2018) (absence of regular inspection procedure does not automatically establish constructive notice)
- Williams v. Ruben Residential Properties, LLC, 58 So. 3d 534 (La. App. 2d Cir. 2011) (similar principle regarding inspections and notice)
- Graham v. City of Shreveport, 31 So. 3d 526 (La. App. 2d Cir. 2010) (photographs and proximity of trees alone insufficient to infer constructive notice of sidewalk uplift)
- Talbert v. Restoration Hardware, Inc., 251 So. 3d 532 (La. App. 1st Cir. 2018) (a mere possibility or speculative argument cannot defeat summary judgment)