332 So.3d 212
La. Ct. App.2021Background
- On or about January 17, 2016, Stephen Amedee allegedly tripped on an uneven sidewalk adjacent to the Embassy Suites (Aimbridge) and struck a metallic object in the driveway.
- Amedee sued Aimbridge and the City of New Orleans; he later added Premium Parking and other defendants.
- The City moved for summary judgment (March 16, 2020), arguing no actual or constructive notice of the sidewalk defect and no responsibility for metal debris; Premium Parking also moved for summary judgment.
- At a July 31, 2020 hearing the trial court granted the City’s motion and dismissed Amedee’s claims against the City with prejudice (Aug. 3, 2020); Premium Parking’s MSJ was denied.
- Amedee did not appeal the City’s dismissal; Premium Parking appealed the City’s dismissal.
- The Fourth Circuit held that Premium Parking lacked the right to appeal the City’s dismissal because Amedee failed to appeal and La. C.C.P. art. 966(G) bars reintroduction or allocation of fault for a party dismissed on summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a co-defendant may appeal a summary-judgment dismissal of another co-defendant when the plaintiff does not appeal | Amedee: did not appeal the City’s dismissal; judgment is final as to City | Premium Parking: must be allowed to appeal to preserve ability to present evidence and allocate fault to City | Co-defendant may not appeal; because Amedee did not appeal, the City’s dismissal is final and Premium’s appeal is precluded |
| Whether the appellate court may review the merits of the City’s summary judgment despite the plaintiff’s failure to appeal | Amedee: failure to appeal forecloses merits review as to City | Premium Parking: trial court erred on merits (constructive notice and responsibility for condition) | Court will not reach merits; lacks authority to review the City’s MSJ because the plaintiff failed to appeal and art. 966(G) prevents reintroduction of dismissed party |
Key Cases Cited
- Grimes v. Louisiana Medical Mutual Insurance Co., 36 So.3d 215 (La. 2010) (explains prior rule that a plaintiff’s failure to appeal renders a co-defendant’s dismissal final; left open comparative-fault reduction pre-amendment)
- Nunez v. Commercial Union Ins. Co., 780 So.2d 348 (La. 2001) (when a judgment dismisses a claim, plaintiff must appeal to obtain affirmative relief; judgment becomes final)
- White v. La. Dep’t of Transportation & Dev., 258 So.3d 11 (La. App. 3 Cir. 2017) (refuses co-defendant appeal where plaintiff failed to appeal; art. 966(G) bars reintroduction of dismissed party)
- Mire v. Guidry, 250 So.3d 383 (La. App. 3 Cir. 2018) (discusses tension created by art. 966(G); permitted co-defendant appeal and reversed MSJ on merits)
- Dixon v. Gray Ins. Co., 223 So.3d 658 (La. App. 5 Cir. 2017) (holds co-defendant cannot appeal dismissal when plaintiff does not; art. 966(G) forbids considering dismissed party’s fault)