293 So.3d 1209
La. Ct. App.2020Background
- On April 7, 2016 English Turn sent a global email to subdivision residents notifying them that speed bumps would be installed at five paired addresses and that reflective bars would be stenciled shortly after installation. The email was sent to and recorded as viewed at the plaintiff's email address.
- On April 23, 2016 Marilyn Cutrone tripped on a speed bump while jogging, sustaining injuries (including a fractured elbow and concussion). She sued English Turn alleging negligent installation and failure to warn pedestrians/runners and lack of signage or safe pedestrian passage.
- English Turn filed a summary judgment motion narrowly limited to whether the April 7 email satisfied its duty to warn Cutrone (it conceded, for purposes of the motion, that the speed bumps were unreasonably dangerous). Supporting evidence included the email, an administrator’s affidavit, and a computer screenshot.
- Cutrone opposed with her deposition (she testified she did not remember seeing the email) and an expert affidavit opining the email was an insufficient warning and that on-site visual warnings were feasible.
- The trial court granted summary judgment but based its ruling on a different ground than the parties briefed: it found the speed bumps did not present an unreasonable risk of harm.
- The Fourth Circuit reversed and remanded, holding the trial court exceeded its authority under La. C.C.P. art. 966(F) by granting summary judgment on an issue not raised by the parties and that a genuine factual dispute existed about whether Cutrone received/relied on the email.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by granting summary judgment on an issue not raised in the motion (Art. 966(F)) | Cutrone: trial court exceeded authority by deciding unreasonableness of bump, an issue not before it | English Turn: reasons for judgment irrelevant on appeal and de novo review makes basis immaterial | Reversed — trial court legally erred; Art. 966(F) prohibits granting SJ on issues not presented by the parties |
| Whether English Turn’s April 7 email constituted adequate warning to defeat Cutrone’s negligence claim | Cutrone: she did not remember seeing/reading the email; expert says email insufficient; creates genuine issue | English Turn: email was sent to and viewed at Cutrone’s address and suffices as notice | Genuine issue of material fact exists about whether Cutrone received/relied on the email; SJ inappropriate on that narrow issue |
| Whether the speed bumps were an unreasonably dangerous condition | Cutrone: factual dispute exists (expert opinion, photos, prior studies) | English Turn: for SJ it conceded the bumps were unreasonably dangerous (but trial court found they were not) | Issue not properly before the court; cannot be the basis for SJ; remand for proceedings on the warnings issue and any properly-pleaded claims |
Key Cases Cited
- McCloud v. Hous. Auth. of New Orleans, 987 So.2d 360 (La. App. 4 Cir. 2008) (landowner duty to keep property reasonably safe; duty to discover and warn of dangerous conditions)
- Moncla v. Albertson's, 670 So.2d 316 (La. App. 3 Cir. 1996) (appellate decision finding a speed bump did not create an unreasonable risk)
- Doane v. Wal-Mart Disc. Stores, Inc., 697 So.2d 309 (La. App. 4 Cir. 1997) (speed bump not unreasonable where plaintiff failed to exercise ordinary care)
- Serou v. Touro Infirmary, 191 So.3d 1090 (La. App. 4 Cir. 2016) (trial court legally errs by granting summary judgment on issues not raised by the parties)
- Broussard v. State ex rel. Office of State Bldgs., 113 So.3d 175 (La. 2013) (whether a defect presents an unreasonable risk is fact-specific)
- Bufkin v. Felipe's Louisiana, LLC, 171 So.3d 851 (La. 2014) (clarifies that, absent material factual disputes, summary judgment can resolve whether a defect is open and obvious)