lain this civil matter, the plaintiff/appellant, Shirley Babino (“Ms. Babino”), asks this Court to reverse summary judgment that dismissed her action in tort against defendant/appellee, Laurel Outdoor, L.L.C. For reasons that follow, we affirm the ruling of the trial court.
Facts and Procedural History
In her petition, Ms. Babino asserts that, on January 16, 2010, she was leaving a designated bus stop in Jefferson Parish when she tripped and fell over “exposed bolts and/or hollow pipe[,] which was protruding out of the ... concrete in which it was embedded.” Ms. Babino sued, among others, Laurel Outdoor, L.L.C. (“Laurel”), as the owner, custodian, or contractor of the bus stop in question.
Laurel filed a motion for summary judgment on the basis that Laurel did not owe a duty to Ms. Babino because the defect in
On December 16, 2011, the trial court rendered summary judgment and dismissed all of the claims against Laurel.
Law and Argument
Here, Ms. Babino appeals contending that the trial court erred in granting summary judgment because there exist genuine issues of material fact in this case. Specifically, she argues that whether the support bolts presented an unreasonably dangerous condition is an issue of fact that should be presented to the jury.
First, Laurel’s owner, Dana Pecoraro, attests that Laurel holds the contract with Jefferson Parish to erect and maintain bus stops throughout the Parish. Further, Mr. Pecoraro attests that removal of the support bolts would have required the replacement of the concrete foundation to reinstall a new bus shelter.
Second, Ms. Babino testified, in her deposition, that, almost every day for 18 years, she caught the bus at the bus stop in question. She remembered that, until a few months before the incident in question, there had been a shelter at the bus stop, which had to be removed after it was damaged.
Ms. Babino testified that, after the shelter was removed, there was still a bench at the bus stop. Ms. Babino stated that she also observed for months before the incident in question that large bolts, which previously anchored the shelter, remained embedded in the concrete. Ms. Babino admitted that she did not call either the Parish or Laurel to report the bolts as dangerous because “it didn’t seem dangerous at that time.”
|4Ms. Babino testified, on the day of the incident, she was waiting for the bus when a friend called to her from a nearby car to offer her a ride home. After Ms. Babino began walking toward the nearby car, her right foot hit one of the bolts and she fell “straight onto” her hands.
Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.
On appeal, our review of summary judgments is de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co.,
La. C.C. art. 2817.1, which was added by Acts 1996, 1st Ex.Sess., No. 1, § 1 reads:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the | ¿ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
Thus, to prove liability for an unreasonably dangerous defect, a plaintiff has the burden to show that the thing was in the custodian’s custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm, and that the damage was caused by the defect. Jeansonne v. S. Cent. Bell Tel. Co.,
Not every defect gives rise to liability. Monson v. Travelers Property,
16SpecificaIly, in a trip and fall case, the duty is not solely with the landowner. A pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04),
We acknowledge that whether a defect presents an unreasonable risk of harm “is a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts.” Tillman v. Johnson,
Upon a de novo review of the facts presented and the applicable law, we find no error in the trial court’s grant of summary judgment in favor of Laurel. Ms. Babino knew for several months that the support bolts were protruding from the concrete at the bus stop and she walked near the bolts without watching where she was stepping. Additionally, she admits she never expressed concern about the existence of the support bolts to appellee, Laurel. We find that Ms. Babino, as the party with the burden of proof at trial, has failed to produce factual support sufficient to show that she will be able to meet her evidentiary burden of proof at trial as required by law; therefore, summary judgment was appropriate. La. C.C.P. 17art. 966(C)(2). After an analysis of the applicable law, we cannot find a material fact remaining to be decided that would preclude a grant of summary judgment on the issues of whether the support bolts posed an unreasonable risk of harm. Accordingly, we affirm the grant of summary judgment as to Laurel.
AFFIRMED