Lead Opinion
Ijn this trip and fall case, the trial court granted summary judgment in favor of the municipality after finding that the surface irregularity in a public parking lot upon which plaintiff tripped did not create an unreasonable risk of harm. The plaintiff appeals the judgment. Finding no issues of material fact, we affirm the trial court’s finding that no unreasonable risk of harm was established.
Facts
The ArkLaMiss fair is conducted annually by the City of Monroe (“City”) at the Monroe Civic Center and surrounding premises. On September 27, 2008, just before noon, while en route to the fair with her two sons and two preschool aged grandchildren, Mrs. Jewel Dowdy tripped over a patched hole in an asphalt roadway on the Civic Center premises and sustained numerous injuries to her hands, arms and right shoulder. At the time of her fall, Mrs. Dowdy’s sons and grandchildren were ahead of her close to a sidewalk which led into the main building. Mrs. Dowdy was headed in the same direction as her family.
As the result of the accidеnt, Mrs. Dowdy (hereinafter “plaintiff’) and her husband
In her deposition, plaintiff testified that she had been to the fair many times and had seen potholes in the parking lots around the Civic Center. She had never fallen or stumbled over a pothole before and she did not recall how the pothole “caught her foot,” although she knew her foot tripped on something there. She did not see the pothole before because “the grandchildren were ahead” of her and she “was trying to keep an eye on them.” She testified that if she had seen it beforehand, she would have avoided it and that if she had looked down she was “sure” she would have seen it.
The photographs depict the location of the fall as a previоusly patched three-foot circular area. The patch was an asphalt repair of a hole with deteriorating frayed borders that had cracked and broken off, creating a change in elevation. The repaired pothole was located on that portion of the parking lot which provided vehicular access between two parking areas. A sidewalk was located on the south front of the larger parking lot which led to the various entrances into the Civic Center. The area was used mainly for vehicular traffic. While the depth of the cracked edge of the pothole patch is difficult to discern from the photographs, for purposes of the summary judgment, the City stipulated that in accordance with one of plaintiffs 1 ^photographs, the largest variance in the surface caused by the patch was 1-1/2 inches.
At the hearing on the motion for summary judgment, the City stipulаted to all factual issues in a light most favorable to the plaintiff and argued that as a matter of
Discussion
We review the grant of a motion for summary judgment de novo. Schroeder v. Board of Sup’rs of Louisiana State University,
If the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burdеn on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to sаtisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
Plaintiffs claim is governed by Article 2317.1 of the Louisiana Civil Code. This article provides that:
The owner or custodian of a thing is answerable for damage occasioned by its rain, 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 damаge could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
Article 2317.1 actions require proof that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Beckham,, supra; Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir.7/14/04),
There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put, the trier of fact must decide whether the social value and utility of the hazard out
The courts have recognized that it is common for the surfaces of streets, sidewalks and parking lots to be irregular and that it is not the duty of the party having garde of these locations to eliminate all variations in elevations existing along the countless cracks, seams, joints and curbs. These surfaces are not required to be smooth and lacking in deviations because such a requirement would be impossible to meet. Reed, supra; Beckham, supra. This fact alone, however, is insufficient to eliminate the defendant’s li ability under the unreasonable risk analysis. Reed, supra; Beckham, supra. Not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Netecke v. State, through Dept. Of Transp. and Dev., 98-1182 (La.10/19/99),
Defendants generally have no duty to protect against an open and obvious hazard. If the facts of a pаrticular case show that the complained-of | ^condition should have been obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff.
In determining whether a condition is unreasonably dangerous, courts have adopted a four-part test. This test requires consideration of: 1) the utility of the complained-of condition; 2) the likelihood and magnitude of the harm, which includes the obviousness and apрarentness of the condition; 3) the cost of preventing the harm; and 4) the nature of the plaintiffs activities in terms of its social utility, or whether it is dangerous by nature. Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08),
In determining the reasonableness of a risk, the court must consider the broad range of social, economic and moral factors and the social utility of the plaintiffs conduct at the time of the accident. Graves v. Page, 96-2201 (La.11/7/97),
The Louisiana Supreme Court has addressed the issue of the unreasonableness of conditions on a sidewalk and parking lot in the two frequently cited cases of Reed, supra and Boyle v. Board of Sup’rs, Louisiana State University, 96-1158 (La.1/14/97),
Boyle reversed both lower courts’ determinations that a 1/2 to 1-inch depression between side-by-side concrete sidewalk slabs created an unreasonable risk of harm. In finding that no unreasonable risk of harm existed, the court considered the substantial risk of harm caused by the depression, the small risk of injury due to the several years of heavy traffic in the location without reported injury and the social utility including the large cost to repair all or worse defects in the approximate 25 miles of sidewalks located at the university. In noting the courts’ consistent holdings that state entities are not liable for every irregularity in a street or sidewalk, the court referred to its earlier decision of White v. City of Alexandria,
In Reed, the plaintiff tripped and fеll on the expansion joint crack between two of the several concrete blocks which made up a store parking lot. The height variance between the blocks was 1/4 to 1/2 inch. Comparing the facts to Boyle, and considering the same factors as those considered in the earlier decision, the court determined that the height variance did not create an unreasonably dangerous condition.
In this summary judgment setting, the City has presented the evidеnce asserted by plaintiff in her deposition and the photos of the accident site which she obtained. Plaintiff obviously makes no assignment of error that | sher essential evidence presented in support of the City’s motion raises any issue of material fact. The plaintiff does assert that the trial court improperly discounted the accident site as a seldom traveled area by pedestrians. With the Civic Center’s use by the general public for this fair and other heavily attended events, we agree with plaintiff that the roadway in question between the parking areas would be expected to have a large amount of pedestrian traffic.
A review of the plaintiffs photos shows that the rough gravel/asphalt surface at the Civic Center is a typical level travel way for vehicles. Other nearby patched areas reveal that this was not the only asphalt patch of the roadway. The patched areas are clearly distinguishable in the roadway. The area in question had not been recently repaired as the traffic over the patch in question had caused multiple cracks around the edges of the circular patch. As seen in the photos, loose pieces of cracked asphalt were lying around the patch.
In Reed, supra, the Supreme Court addressed the standard of appellate review for a trial court’s determination of whether a condition of the thing or property presents an unreasonable risk of harm. A conflict |aamong the circuits existed for review of verdicts after a trial on the merits regarding whether the legal and policy issues surrounding the risk/utility balancing test allowed the appellate cоurt to be unrestrained by the manifest error rule and to decide the existence of an unreasonable risk of harm de novo. The court affirmed the application of the manifest error standard as follows:
In Tillman, we stated 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,612 So.2d at 70 (citing to Entrevia,427 So.2d 1146 ; Landry,495 So.2d 1284 ; and Oster,582 So.2d 1285 ). “The unreasonable risk of harm criterion entails a myriad of considеrations and cannot be applied mechanically.” Oster,582 So.2d at 1288 (citing to Landry,495 So.2d at 1287 ). The concept, which requires a balancing of therisk and utility of the condition, is not a simple rule of law which can be applied mechanically to the facts of the case. Id. Because of the plethora of factual questions and other considerations involved, the issue necessarily must be resolved on a case-by-case basis. Additionally, an appellate court, reviewing a cold record, is not in the best position to wеigh and evaluate the evidence presented and make this determination. Rather, the original fact finder, viewing live testimony and evidence, is best positioned to make a determination so heavily laden with factual issues.
Because a determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case, followed by an apрlication of those facts to a less-than-scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court. Consequently, the findings of the jury or trial court should be afforded deference and we therefore hold that the ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard.3
Reed, supra at 364-365.
h (Reed was decided in a case fully tried on the merits. The trier of fact was presented disputed facts and then required to apply the risk/utility evaluation as the legal measure of those facts. Reed was not a summary judgment ruling. In the present case, the procedural rule of La. C.C.P. art. 966(C)(2) placed the burden upon the plaintiff to produce in opposition to the motion for summary judgment factual support different from the evidence of the City to show that a genuine issue of material fact exists. However, as shown above, the best evidence of the сondition of the patched roadway is the plaintiffs photos of the accident site. That evidence along with plaintiffs testimony is fully before the court and undisputed. Thus, given the common condition of this public asphalt road and the simple explanation of the plaintiffs fall, this court, like the parties, cannot articulate a genuine issue of material fact for the trial court to decide to serve as a rationale for reversal in this casе.
Therefore, the question posed from the above quoted ruling of Reed is whether a decision concerning the existence of an unreasonable risk of harm for an alleged defective thing may never be reached by a motion for summary judgment. With summary judgment expressly “favored” “to secure the just, speedy, and inexpensive determination of every action” under the Code of Civil Procedure, we do not view Reed, which did not involve summary judgment, as a bar to summary judgment under thеse |, circumstances where no fact dispute is asserted. La. C.C.P. art. 966(A)(2). The court is charged legislatively by this favored procedure to deter
A review of the jurisprudence reveals that the appellate courts have resolved on motions for summary judgment the issue of whether a condition presented an unreasonable risk of danger. In Llorence v. Broadmoor Shopping Center, Inc., 2011-233 (La.App. 3d Cir.10/5/11),
In Leonard v. Parish of Jefferson, 05-32 (La.App. 5th Cir.4/26/05),
In Reitzell v. Pecanland, Mall Associates, Ltd., 37,524 (La.App.2d Cir.8/20/03),
In contrast, in Beckham, supra, a patron slipped and fell on an unpaved parking lot after encountering chunks of asphalt. The parking lot was on a slope. The trial court granted summary judgment in favor of the defendant. On appeal, this court reversed the summary judgment because of remaining issues of material fact regarding the “unusual feature” of the parking lot involved in the accident which would “be better assessed аt a trial on the merits.”
With undisputed facts in this case, the City’s duty was to maintain the roadway in a condition that was reasonably safe and did not present an [ ^unreasonable risk of harm to pedestrians using the Civic Center and exercising ordinary care and prudence. Under the risk/utility balancing test, the roadway serves a social utility primarily for providing vehicles access to parking around the Civic Center. It additionally, serves a purpose of allowing the pedestrian to walk to and from the Civic Center for the public activities of the facility-
The third factor focuses on the cost of preventing harm. The cost of some additional repair or repatching of this pothole was not specifically addressed in the record. Yet, for one pothole the cost would not be that great. Nevertheless, as indicated in the ruling in Boyle regarding the maintenance of public sidewalks, the cost of repair to be considered in the | urisk/utility evaluation “includes not just the minor costs of repairing the single defect in question, but the cost of repairing all similar or worse defects” for the City’s roadways and parking lots. Boyle, supra,
Finally, we must consider the nature of the plaintiffs activity in terms of its social utility, or whether it is dangerous by nature. Clearly, the use of the public facility by the plaintiff and all pedestrians has social utility. However, plaintiff greatly increased the pedestrian’s risk of tripping by her focus on her nearby grandchildren which, admittedly, distracted her from seeing the patched area of the roadway.
From this review, we find that the irregularity of the repaired area of the roadway where plaintiff tripped did not present an unreasonable risk of harm. The policies emphasized by the Supreme Court in Reed and Boyle likewise are present for consideration of this public asphalt roadway. The City did not owe a duty to plaintiff because, under the undisputed facts of this common roadway setting, the observable irregularity in the road surface did not pose an unreasonable risk of harm.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Dowdy.
AFFIRMED.
DREW, J., dissents and assigns reasons.
Notes
. Jesse Dowdy is now deceased.
. Plaintiff's description of the accident was that her foot hit something causing her to trip. She did not say that she stepped on a loose piece of asphalt. The pieces of asphalt shown in the photos taken 5-6 months after the accident were therefore apparently not the cause of the accident and may not have been present at the time of the accident. The variance between the height of the edge of the asphalt patch and the surrounding surface is the asserted cause of the plaintiff's trip and fall.
. The complete citations omitted from the above quote include in the ordеr listed, Tillman v. Johnson,
. In addressing the propriety of the summary judgment in Robertson v. State, through Dep't of Planning and Control, 32,309 (La.App.2d Cir. 12/10/99),
Dissenting Opinion
dissenting.
_JjAs this appears to me to be a comparative liability case, I must respectfully dissent.