168 So. 3d 775
La. Ct. App.2015Background
- Lakeside Plaza owns a strip mall with a raised covered walkway and parking spaces with fixed yellow parking bumpers perpendicular to the walkway.
- In 2005 Lakeside installed a continuous concrete step along the walkway front, reducing the horizontal stepping space between the step and parking bumpers.
- In 2008 Salvadore Tramuta fell exiting Jeff’s Haberdashery; he later died during the litigation. Plaintiffs allege his foot was caught between the added step and a parking bumper causing the fall.
- Lakeside moved for summary judgment, arguing plaintiff cannot prove causation, a defect/unreasonable risk, or Lakeside’s knowledge; also asserted the condition was open and obvious.
- Trial court granted summary judgment for Lakeside; Mrs. Tramuta appealed. The appellate court reviewed de novo and vacated the summary judgment, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation | Tramuta’s deposition supports that his foot caught between the step and a bumper causing the fall | No witness observed the fall; Tramuta sometimes said he didn’t know what caused it, so causation is speculative | Genuine factual dispute remains; reasonable jury could accept Tramuta’s testimony that his foot was caught between step and bumper |
| Existence of a defective condition/unreasonable risk | Placement of parking bumpers relative to the added step created a hazardous gap; expert Frenzel opined defect existed | Expert Connell opined placement was not defective; bumpers are normal in parking lots | Competing expert opinions create a genuine issue of material fact; summary judgment inappropriate |
| Open and obvious doctrine | The defect is the spatial relationship of bumpers to the step; step blends with surroundings and may not be ordinarily anticipated | Bumpers are painted yellow and obvious; pedestrian should avoid crossing bumpers | Triable issue whether the hazard was open and obvious given expectation of users and step visibility; cannot resolve on summary judgment |
| Knowledge of owner (La. C.C. art. 2322) | Contractor testified he recommended painting step yellow and moving bumpers; Lakeside declined — evidence of notice | Lakeside denies knowledge of any dangerous condition | Contractor’s testimony raises a factual dispute on notice/constructive knowledge; summary judgment improper |
| Comparative fault | Tramuta had safer alternatives and was inattentive | Defendant argues Tramuta’s choices caused his fall | Comparative fault is a jury question; does not bar trial on defect question |
Key Cases Cited
- Int’l Ass’n of Heat & Frost Insulators v. Paternostro, 142 So.3d 284 (La. App. 5 Cir. 2014) (summary judgment standards and review de novo)
- Broussard v. State, 113 So.3d 175 (La. 2013) (risk-utility balancing test and treatment of open-and-obvious hazards)
- Luther v. IOM Co. LLC, 130 So.3d 817 (La. 2013) (definition of material and genuine factual issues)
- Entrevia v. Hood, 427 So.2d 1146 (La. 1983) (defective component must create unreasonable risk of harm)