Bates v. Louisiana National Guard Armory

86 So. 3d 21, 2012 WL 204525, 2012 La. App. LEXIS 55
CourtLouisiana Court of Appeal
DecidedJanuary 25, 2012
DocketNo. 46,892-CA
StatusPublished
Cited by1 cases

This text of 86 So. 3d 21 (Bates v. Louisiana National Guard Armory) 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
Bates v. Louisiana National Guard Armory, 86 So. 3d 21, 2012 WL 204525, 2012 La. App. LEXIS 55 (La. Ct. App. 2012).

Opinion

MOORE, J.

hThe State of Louisiana Military Department appeals a partial summary judgment, as to liability only, in favor of Kim Bates, who sustained a trip-and-fall accident on the grounds of the Louisiana National Guard Armory in West Monroe, Louisiana. We affirm.

Factual and Procedural Background

On September 5, 2003, a contingent of Guardsmen was returning to Louisiana from a tour in Afghanistan. Ms. Bates, along with several family members, went to the National Guard Armory on Industrial Drive in West Monroe to greet her [22]*22niece’s husband, who was in the returning group.

According to her deposition, Ms. Bates had never been to the armory before. Her niece handed her a camera and asked her to take pictures when the Guardsmen got off the bus. The crowd was very large, and when the first vehicle (actually a station wagon, not a bus) turned off the road, the crowd started cheering and edging toward the street. Ms. Bates lifted the camera to her eyes and started moving with the crowd. Suddenly, she fell and hit the grass. At first she thought the crowd had shoved her over, but as she got up she discovered there was a line or wire stretched between two posts; it had tripped her and actually cut her legs. She saw other people tripping on the line, but nobody else fell.

Not wanting to disrupt the homecoming, Ms. Bates declined an offer to call an ambulance. However, she alleged that she sustained several injuries requiring medical attention for about a year and resulting in residual pain seven years later.

|2Ms. Bates’s father, Kenneth Eubanks, saw her fall. In deposition, he stated the line appeared to be a telephone wire or other cable about 2 inches off the ground, with no warning signs on or near it. He also stated he could not imagine why it was placed there.

Although the crowd at the homecoming was large, Ms. Bates offered no other depositions or affidavits from anyone else who saw her fall or described the line. She also offered no photographs of the line.

Ms. Bates and her husband filed this suit against the Louisiana National Guard Armory and the State of Louisiana Military Department in August 2004. Ms. Bates took a preliminary default in February 2005, but it was never confirmed. The state finally answered in September 2006, entering general denials and a request for jury trial.1 The state took no further steps until 2009, when it filed notices to depose Ms. Bates, her husband, father and brother, but the depositions did not actually occur until February 2010.

In September 2010, Ms. Bates filed this motion for partial summary judgment as to liability. She attached the four depositions and argued that the line posed an unreasonable risk of harm of which the state had actual or constructive knowledge. She also argued that a plaintiff can be found free of fault for tripping over an unreasonably dangerous object in her path, as occurred in Nuckley v. Cox Cable New Orleans, 527 So.2d 414 (La.App. 4 Cir.), writ denied, 532 So.2d 115 (1988).

|oThe state opposed the motion, arguing that although under La. C.C.P. art. 966 C(2) the mover had the burden of proving no genuine issue of material fact, Ms. Bates had failed to show that she was free of fault. In support, it offered a portion of Ms. Bates’s deposition. The state offered no other summary judgment evidence.

The court held a hearing, which was not transcribed, in November 2010, and granted Ms. Bates’s motion in June 2011. The judgment stated merely that there was no genuine issue of material fact that the state was solely liable for the accident at issue. The state took this appeal.

Applicable Law

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Samaha v. Rau, 2007-1726 [23]*23(La.2/26/08), 977 So.2d 880; Adams v. JPD Energy Inc., 45,420 (La.App. 2 Cir. 8/11/10), 46 So.3d 751, writ denied, 2010-2052 (La.11/12/10), 49 So.3d 892. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Sensebe v. Canal Indem. Co., 2010-0703 (La.1/28/11), 58 So.3d 441. A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. After adequate discovery or after a case is set for trial, “a motion which shows 14that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. art. 966 C(l). When the motion for summary judgment is made and supported as provided in Art. 966, the adverse party “may not rest on the mere allegations or denials of his pleading,” but his response, by affidavits or other proper summary judgment evidence, “must set forth specific facts showing that there is a genuine issue for trial.” La. C.C.P. art. 967 B; Cheramie Servs. Inc. v. Shell Deepwater Prod. Inc., 2009-1633 (La.4/23/10), 35 So.3d 1053. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. Id. Speculation that a factfinder might disbelieve the mover’s witnesses will not defeat a properly supported motion for summary judgment. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Babin v. Winn-Dixie La. Inc., 2000-0078 (La.6/30/00), 764 So.2d 37.

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sensebe v. Canal Indem. Co., supra; Tillman v. Eldridge, 44,460 (La.App. 2 Cir. 7/15/09), 17 So.3d 69.

A landowner owes a duty to a plaintiff to discover any unreasonably dangerous condition, and either to correct it or warn of its existence. La. C.C. art. 2317; Eisenhardt v. Snook, 2008-1287 (La.3/17/09), 8 So.3d 541. In determining whether a condition is unreasonably dangerous, courts have adopted a four-part test, requiring consideration of (1) the utility of the complained-of condition, (2) the likelihood and magnitude of the harm, (3) |5the 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., 2008-0528 (La.12/2/08), 995 So.2d 1184. However, the landowner generally has no duty to protect against an open and obvious hazard. Eisenhardt v. Snook, supra, and citations therein. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether a condition is unreasonably dangerous. Id.; Williams v. Ruben Residential Properties, 46,040 (La.App. 2 Cir. 3/2/11), 58 So.3d 534.

Discussion

By two assignments of error, the state urges that summary judgment was inappropriate because Ms. Bates failed to establish that there was no genuine issue of material fact that she was free from fault in the accident. It argues that by her own admission, Ms. Bates “had a camera up in front of her face to take pictures” and “wasn’t looking where she was stepping as she moved along.” Citing La. C.C. art. 2317.1 and R.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Biggs v. Hatter
91 So. 3d 1148 (Louisiana Court of Appeal, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
86 So. 3d 21, 2012 WL 204525, 2012 La. App. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bates-v-louisiana-national-guard-armory-lactapp-2012.