Gerald Bercy v. 337 Brooklyn, LLCGerald Bercy v. 337 Brooklyn, LLC
(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Tiffany G. Chase)
Simone R. Nugent
LAW OFFICE OF SIMONE R. NUGENT
511 Baird Drive
Baton Rouge, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANT
Magen W. Detillieu
Richard Todd Musgrave
MUSGRAVE MCLACHLAN & PENN, LLC
1515 Poydras Street
Suite 2380
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
REVERSED AND REMANDED
FACTS AND PROCEDURAL HISTORY
On June 10, 2017 at approximately 4:00 p.m., Mr. Bercy arrived at a friend‘s home for a gathering.1 Mr. Bercy was assisting with grilling for the gathering. The grill was located on an exterior wooden deck, accessed from the home by three wooden steps descending from the back door. The steps are the same color as the deck, did not contain a handrail, and the steps are of slightly differing widths and heights (hereinafter referred to collectively as “the stairs“). Mr. Bercy traversed the stairs several times during the course of the evening; however, later in the evening, while Mr. Bercy was descending the stairs, he slipped and fell sustaining injuries.
On June 8, 2018, Mr. Bercy filed suit, alleging that 337 Brooklyn failed to discover, correct, and warn of an unreasonably dangerous condition in the stairs. 337 Brooklyn filеd for summary judgment arguing that Mr. Bercy could not prove several elements of his premises liability case. It also maintained that if a defect existed, the defect was open and obvious and did not present an unreasonable risk of harm. Mr. Bercy opposed the motion arguing that there existed genuine issues of material fact as to whether the stairs were unreasonably dangerous. In support of his opposition, Mr. Bercy produced an expert report of an engineer who testified that the stairs failed to adhere to established building code standards; thus, creating an unreasonably dangerous condition.
The trial court granted 337 Brooklyn‘s motion for summary judgment finding Mr. Bercy was aware of potential hazards in the stairs and “failed to exercise reasоnable care and caution while traversing the stairs...[a]nd that the condition of the stairs was open and obvious.” The court concluded that assuming a defect existed, Mr. Bercy nonetheless failed to present evidence which would establish the neсessary element of causation. This appeal followed.
“Appellate courts review the grant or denial of a motion for summary judgment de novo, employing the same criteria that govern a trial court‘s determination of whether summary judgment is apprоpriate.” Maddox v. Howard Hughes Corp., 2019-0135, p. 4 (La.App. 4 Cir. 4/17/19), 268 So.3d 333, 337. “[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.” Romain v. Brooks Restaurants, Inc., 2020-0243, p. 3 (La.App. 4 Cir. 11/18/20), --So.3d--, 2020 WL 677890 at *2 (quoting
DISCUSSION
Mr. Bercy rаises two assignments of error. First, he contends that the trial court erred in finding that he did not produce sufficient evidence to establish that a defect in the stairs caused his fall. Second, Mr. Bercy argues that the trial court further erred in its finding that the condition of the stairs was open and obvious, and therefore not unreasonably dangerous. We will address each assignment of error in turn.
The standard for granting a motion for summary judgment is set forth in
“A fact is material when its existence or nonexistence may be essential to the plaintiffs [sic] cause of action under the applicable theory of reсovery; a fact is material if it potentially insures or precludes recovery, affects a litigant‘s ultimate success, or determines the outcome of the legal dispute.” Chapital v. Harry Kelleher & Co., Inc., 2013-1606, p. 5 (La.App. 4 Cir. 6/4/14), 144 So.3d 75, 81. Whether a fact is material is a determination that must be made based on the applicable substantive law. Roadrunner Transp. Sys. v. Brown, 2017-0040, p. 7 (La.App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751).
In support of its motion for summary judgment, 337 Brooklyn submitted Mr. Bercy‘s petition for damages, deposition testimony, and pictures of the scene. It argued that there was no defect in the stairs and that the stairs did not рresent an unreasonable risk of harm. Thus, 337 Brooklyn maintained that Mr. Bercy would be unable to establish a causative (causal) link between his fall and his injuries. The burden then shifted to Mr. Bercy, pursuant to
Mr. Bercy submitted an expert report of a civil engineer, Warren L. Dietz, who identified several defective conditions in the stairs, noting that the stairs did not comply with the 1969 Standard Building Code.2 Specifically, Mr. Dietz‘s report pointed out the following: (1) the treads of the stairs were the same color as the flooring of the deck; (2) the stairs lacked handrails; and (3) the actual steps differed in height and width.3 Mr. Bercy contends these violations alone were sufficient to create a genuine issue of material fact as to causation. We agree.
The stairs were the same color as the deck and differed in height and width. Moreover, there was no handrail, nor any other device, that would have provided stability. The trial court emphasized thаt Mr. Bercy traversed the stairs several times and had been drinking prior to his fall. While those factors may have contributed to his fall, we cannot conclusively find that the structural defects of the stairs were not a factor. We find Mr. Bercy provided sufficient faсts to suggest that a defect in the stairs may have contributed to his fall. The element of causation is fact intensive and determined by the trier of fact who will weigh the evidence presented by the parties. Thus, we find the trial court erred in finding Mr. Bercy failed to establish causation.
OPEN AND OBVIOUS
We now turn to the trial court‘s finding that the condition of the stairs was open and obvious and therefore not unreasonably dangerous. Mr. Bercy alleges that his fall and resulting injuries were caused by the negligent, acts, omissions and want of care оf 337 Brooklyn. See
The stairs are a cоmponent part of the building owned by and in the custody of 337 Brooklyn; thus the threshold question is whether the stairs, a component part, created an unreasonable risk of harm. See e.g. Hooper, 2015-0339, p. 7, 171 So.3d at 1000. To determine whether a condition is unreasonably dangerous, a factor to consider is the likelihood and magnitude of harm, including the “obviousness and apparentness” of the condition. See Carrero v. Mandina‘s, Inc., 2019-0158, p. 6 (La.App. 4 Cir. 8/7/19), --- So. 3d ----, 2019 WL 3719552 at *3 (quoting Bufkin v. Felipe‘s, LLC, 2014-0288, p. 6 (La. 10/15/14), 171 So.3d 851, 856). “Generally, a defendant does not have a duty to protect against an open and obvious hazаrd.” Broussard‘s, 2012-1238, p. 10, 113 So.3d at 184. For a defect to be considered open and obvious, the danger that creates the defect must be apparent to all, i.e., everyone who may potentially encounter it. Broussard‘s, 2012-1238, p. 23, 113 So.3d at 192. “[A]bsent any material factual issue, the summary judgment procedure can be used to determine whether a defect is open and obvious and thus does not present an unreasonable risk of harm.” Jones v. Stewart, 2016-0329, p. 14 (La.App. 4 Cir. 10/5/16), 203 So.3d 384, 393.
337 Brooklyn presented photographs depicting the scene, which it contends establish “just a basic stair.” 337 Brooklyn also presented the deposition testimony of Mr. Bercy, who had traversed the stairs several times before his fall. Mr. Bercy testified that one had to take one‘s time going up the steps because there were no railings. 337 Brooklyn argued Mr. Bеrcy‘s familiarity with the stairs made their condition open and obvious to him. Assuming that 337 Brooklyn established its prima facie case, the burden shifts to Mr. Bercy to set forth genuine issues of material fact as to whether the stairs were unreasonably dangerous. As stated abоve, Mr. Bercy presented expert testimony regarding the lack of a handrail, continuity of coloring of the stairs and deck and specifications of the stairs’ height and width from Mr. Dietz. Mr. Bercy contended that Mr. Dietz‘s findings were sufficient to create a genuine issuе of material of material fact as to whether the stairs’ condition is unreasonably dangerous. Although 337 Brooklyn attempts to refute these arguments by noting that the lack of handrails and lack of tread contrast were open and obvious to Mr. Bercy because he used the stairs before his fall, we find these arguments unpersuasive. The pivotal issue is not whether the condition was open and obvious to Mr. Bercy, who had traversed the stairs several times that day, but whether the condition was open and obviоus. Moreover, the question remains whether the existence of the code violations could have caused Mr. Bercy to fall. 337 Brooklyn submitted argument rather than produce tangible evidence to refute Mr. Bercy‘s allegations.
In determining whether a gеnuine issue of material fact exists on a motion for summary judgment, courts cannot evaluate testimony or weigh evidence. Fiveash, 2015-1230, p.7, 201 So.3d at 917 (quoting Quinn, 2003-0903, pp. 3-4 (La.App. 4 Cir. 3/3/04), 869 So.2d 922, 926). In the case sub judice, the trial court weighed evidence and evaluated testimony, finding that the condition of the stairs was opеn and obvious based solely on Mr. Bercy‘s deposition testimony. This Court has found that expert testimony is sufficient to create a genuine issue of material fact as to whether a condition was unreasonably
We find that Mr. Deitz‘s report was sufficient to create a genuine issue of material fact as to whether the condition of the stairs was open and obvious. Thus, we find the trial court erred in granting summary judgment finding thе condition of the stairs was open and obvious and therefore not unreasonably dangerous.
CONCLUSION
For the above reasons, we reverse the trial court‘s granting of summary judgment in favor of 337 Brooklyn and remand the matter to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED