Lucille Jefferson v. Nichols State University, Office of Risk Management for the State of Louisiana, Louisiana Attorney General, and the Board of Supervisors of the Unversity System of LouisianaLucille Jefferson v. Nichols State University, Office of Risk Management for the State of Louisiana, Louisiana Attorney General, and the Board of Supervisors of the Unversity System of Louisiana
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Decision Rendered: MAY 11 2020
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Kervin W. Doyle
New Orleans, Louisiana
Attorney for Plaintiff/Appellant Lucille Jefferson
Geri Broussard Baloney
Abril Southerland
José Carlos Méndez
New Orleans, Louisiana
Attorneys for Defendant/Appellee State of Louisiana through the Board of Supervisors of the University of Louisiana System
A pedestrian visiting a college campus appeals the summary judgment dismissal of her claims seeking recovery for injuries she sustained when she tripped and fell on an uneven sidewalk. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the early afternoon of October 26, 2013, Lucille Jefferson was attending a family event at Nicholls State University in Thibodaux, Louisiana, where her granddaughter was a student. As she and several other family members were walking on a sidewalk near the football field, Ms. Jefferson fell and was injured when she tripped on an uneven section of the sidewalk where the elevation difference measured about one and three-fourths to two inches. According to Ms. Jefferson, she did not see the uneven sidewalk, because she was looking ahead to avoid bumping into others and because of shadows made by the trees lining the sidewalk. Ms. Jefferson was treated at a local emergency room on the day of the accident and released; she then saw an orthopedist and underwent physical therapy for shoulder, knee, and back injuries for several months.
Ms. Jefferson filed suit against the State of Louisiana, through the Board of Supervisors of the University of Louisiana System (the State), seeking recovery for her injuries.1 After answering the suit and denying
judgment, the district court indicated Ms. Jefferson had failed to demonstrate she could carry her burden at trial that the uneven sidewalk was an unreasonable risk of harm.
Ms. Jefferson appeals the adverse judgment, asserting two assignments of error. She first contends the district court erred by failing to consider her expert engineer‘s affidavit. She next contends the district court erred in granting summary judgment, because the evidence shows disputed factual issues regarding whether the uneven sidewalk presented an unreasonable risk of harm and whether the State had constructive knowledge of such.2
APPLICABLE LAW
Appellate courts review the grant or denial of summary judgment de novo under the same criteria governing the district court‘s consideration of whether summary judgment is appropriate. Apache Corp. v. Talen‘s Marine & Fuel, LLC, 17-0714 (La. App. 1 Cir. 2/7/18), 242 So.3d 619, 622. A court shall grant summary judgment if the pleadings, memorandum, and admissible supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See
Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Tilley v. City of Walker, 18-1587 (La. App. 1 Cir. 12/30/19), ___ So.3d ___, 2019 WL 7343415 *2. Under
Constructive notice is defined as the existence of facts that infer actual knowledge.
In opposition to the State‘s motion, Ms. Jefferson filed the affidavit of Warren L. Dietz Jr., a professional safety engineer. Regarding the State‘s purported notice of the uneven sidewalk, Mr. Dietz opined:
Based on the use and activity of the adjoining premises, the university should have conducted regular and frequent inspections for tripping hazards on this heavily used sidewalk. The approximate 1.75 to 2.0-inch size of the change of elevation in this case is sufficient enough to be readily recognizable on reasonable and competent inspection. The recommended practice for sidewalk inspections is to conduct inspections on a yearly basis to identify defects subject to repair, and such inspections should be done more frequently around schools and hospitals. A competent inspection would have identified defects of the size recorded here.
. . . .
Defects of the type recorded here do not occur overnight. The uplifting of the concrete sidewalk slab occurs only gradually. Even before the defect reaches a height at which it is subject to repair, the condition can be monitored on a regular basis. In this case, the uplifting would have been identifiable years before the October 26, 2013 accident.
Mr. Dietz‘s above statements are merely speculative and do not create a disputed issue as to the State‘s constructive notice. It takes more than the existence of a more factual possibility to defeat summary judgment. See Talbert v. Restoration Hardware, Inc., 17-0986 (La. App. 1 Cir. 5/31/18), 251 So.3d 532, 539; see also Everett v. Nicholls State University, 19-0930 (La. App. 1 Cir. 2/26/20), 2020 WL 913737 *4 (“It takes more than mere argument of a possibility to raise a genuine issue of fact.“). Although Mr. Dietz states the university should have conducted “frequent” inspections of the sidewalk, Ms. Jefferson produced no evidence of how often the university performed or did not perform inspections of its sidewalks. Further, a public entity‘s lack of a regular inspection procedure does not necessarily confer constructive knowledge of defects in its streets, signs, and sidewalks. Clark v. EBRP Department of Public Works, 17-1445 (La. App. 1 Cir. 4/6/18), 248 So.3d 409, 415; Williams v. Ruben Residential Properties, LLC, 46,040 (La. App. 2 Cir. 3/2/11), 58 So.3d 534, 541-42.
Mr. Dietz also opines that the one and three-fourths to two inch elevation deviation did not “occur overnight,” would have “occurred gradually,” and the “uplifting” of the sidewalk would have been “identifiable years before” Ms. Jefferson‘s accident. And, in his affidavit, Mr. Clausen himself opined that the sidewalk deviation was the result of “natural causes such as Louisiana climate, settling Louisiana soil, and trees close in proximity to the area[.]” These general observations regarding the gradual development of the sidewalk elevation deviation fall short of the factual support required to establish an evidentiary burden at trial. See Lynch, 2015 WL 3546068 *4. Even if the sidewalk gradually became uneven over many years, such is not proof of how long the elevation that existed on the day Ms. Jefferson fell was there before her fall. In other words, Mr. Dietz‘s general opinion that the uplifting of sidewalk would have been identifiable for years is not proof that the specific one and three-fourth to two inch deviation existed for days, weeks, months, one year, or more, such that the State should have discovered and repaired it.
We find the reasoning of a similar case from the Second Circuit persuasive. In Graham v. City of Shreveport, 44,994 (La. App. 2 Cir. 1/27/10), 31 So.3d 526, 531-32, the Court rejected a plaintiff‘s attempt to establish a city‘s constructive notice of an uneven sidewalk (where the elevation difference was no more than two inches) with the use of photographs showing trees growing near the sidewalk. The Graham plaintiff contended that roots of nearby trees underneath the sidewalk caused the concrete to elevate over time. Id. at 528. The City presented evidence that there had been no documented complaints about the subject sidewalk before Ms. Graham‘s fall. Id. Finding that the photographs did not provide a clear inference that the growth of the tree over a lengthy period of time had gradually caused the defect, and noting the plaintiff had presented no other evidence regarding the length of time the problem existed, the Graham court found there was insufficient circumstantial evidence to demonstrate the city‘s constructive notice of the elevated sidewalk. Id. at 531-32. In this case, we similarly conclude that the existence of an elevated sidewalk near trees, absent other evidence, is insufficient to demonstrate constructive notice of a defect. See also Nettles v. Dean Offices, LLC, 07-0096 (La. App. 1 Cir. 11/2/07), 2007 WL 3229159 *2 (reversing a judgment against a public entity due to a lack of facts to establish constructive notice of an elevated sidewalk; and, rejecting the premise that the defect was “not a condition that occurred overnight” as sufficient to establish constructive notice).
Thus, in light of the absence of prior accidents or reports to the State involving the subject sidewalk, and after reviewing the summary judgment evidence de novo, particularly Mr. Dietz‘s affidavit, we conclude
CONCLUSION
For the above reasons, we affirm the summary judgment in favor of the State of Louisiana, through the Board of Supervisors of the University of Louisiana System, and the dismissal of Lucille Jefferson‘s petition with prejudice. We assess appeal costs against Lucille Jefferson.
JUDGMENT AFFIRMED.
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