Barnett v. City of Baton Rouge

206 So. 3d 904, 2016 La.App. 1 Cir. 0222, 2016 La. App. LEXIS 1994
CourtLouisiana Court of Appeal
DecidedOctober 31, 2016
Docket2016 CA 0222
StatusPublished
Cited by4 cases

This text of 206 So. 3d 904 (Barnett v. City of Baton Rouge) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnett v. City of Baton Rouge, 206 So. 3d 904, 2016 La.App. 1 Cir. 0222, 2016 La. App. LEXIS 1994 (La. Ct. App. 2016).

Opinion

McClendon, j.

| ^Appellant seeks review of a trial court’s judgment granting summary judgment in favor of the defendant and dismissing appellant’s lawsuit without prejudice in favor of the defendant. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

This action for personal injuries arises out of a single vehicle accident that occurred in January 2013 on North Foster Drive in East Baton Rouge Parish. Plaintiff, Randolph Barnett, was driving a Ford F-150 when an overhead school zone traffic control signal suspended over the subject roadway crashed onto the front of his vehicle and into his windshield. In January 2014, Mr. Barnett timely filed suit against the City of Baton Rouge and Parish of East Baton Rouge, through the Department of Public Works (hereinafter “City-Parish”).1

[906]*906In May 2015, the City-Parish filed a motion for summary judgment. In support of its motion, the City-Parish attached the affidavit of Charles Washington, the signal shop supervisor for the Department of Public Works. Washington attested that the accident was caused by the sign’s collar, a device used to attach signs to overhead signal arms, which had broken and caused the sign to fall. Mr. Washington indicated that it likely had broken because of damage received in a thunderstorm/windstorm, including 81-mile-per-hour gusts, that occurred earlier that day. Mr. Washington opined that the break was not the type that would have developed over time or could have been detected by simple inspection but rather was likely a result of “being gyrated and flung about in the thunderstorm which damage gradually worsened in time until it resulted in the failure of the collar.” Mr. Washington further attested that there had been no prior notice “concerning anything unusual or untoward with this signage that could have developed into a hazardous condition” until the City-Parish received the call about Mr. Barnett’s accident. In light of the foregoing, the City-Parish asserted that Mr. Barnett could not meet his burden of proof to show that the City-Parish was negligent or had actual or constructive notice of any alleged defect.

|sIn opposition to the City-Parish’s motion for summary judgment, Mr. Barnett introduced the expert report of Leroy Blanchard, a mechanical engineer employed by Piping Analysis Incorporated Engineering.2 According to Mr. Blanchard, the school zone sign assembly “contain[s] screw threads that result in a loose fit, requiring set screws to prevent backing out.” Mr. Blanchard indicated that the diameter of the screw threads is significantly less than the actual pipe’s outside diameter. This resulted in a thinner cross sectional area at the root of the threads, creating a structural discontinuity and resulting in a “weak point” in the supporting pipe. Mr. Blanchard also opined that the sign should be capable of withstanding hurricane force winds as outlined in the American Society of Civil Engineers (ASCE) wind-loading criteria, which is much greater than the 31-mile-per-hour gusts to which the City-Parish attributed the failure. Mr. Blanchard further attested that “[i]t is more likely than not that the failure that resulted in personal injury and property damage ... was a result of fatigue failure from misapplication of engineered products being exposed to cyclical loading for which they were not designed.”

Following a hearing on the City-Parish’s motion for summary judgment, the trial court granted the motion, reasoning as follows:

This is an unfortunate accident no doubt, and it is a serious situation, but in this case the plaintiff has not shown that the [City-Parish] had any constructive or actual knowledge, of the defect, nor have they shown that they were given an opportunity to repair or correct; therefore, the plaintiff would not be able to meet [his] burden of proof at trial, so I am going to grant the motion for summary judgment, dismiss the City/Parish of Baton Rouge with prejudice.

[907]*907The trial court signed a judgment accordingly. Mr. Barnett-has appealed, presenting the following assignments ■ of error:

1. The trial court erred by granting ■ defendant, City-Parish’s Motion .for Summary Judgment because genuine issues of material fact exist.
2. The trial court erred by granting defendant, City of Baton RougeH Parish of East Baton Rouge’s Motion for Summary Judgment based on the court’s own factual determination that the plaintiff Randolph |4Barnett could not prove actual or constructive notice at the time of trial and therefore, could not meet [his] burden of proof.

DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. article 966B(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Temple v. Morgan, 15-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76.

The burden of proof is on the mover. See LSA-C.C.P. art. 966C(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must 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, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a 'matter of law. LSA-C.C.P. art. 966C(2); Temple, 196 So.3d at 76. 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 this case. Tomaso v. Home Depot, U.S.A., Inc., 14-1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 681.

A public entity’s liability for a defective thing within its custody or care is ordinarily analyzed under LSA-R.S. 9:2800C. Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La. 4/5/13), 113 So.3d 175, 181. Louisiana Revised Statutes 9:2800C provides in pertinent part:

[N]o person shall have a cause of action based solely upon liability imposed-under Civil Code Article 2317 against a public entity for damages | ^caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

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Bluebook (online)
206 So. 3d 904, 2016 La.App. 1 Cir. 0222, 2016 La. App. LEXIS 1994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnett-v-city-of-baton-rouge-lactapp-2016.