Christiano v. Southern Scrap Recycling

131 So. 3d 1059, 13 La.App. 5 Cir. 595, 2013 WL 6839088, 2013 La. App. LEXIS 2876
CourtLouisiana Court of Appeal
DecidedDecember 27, 2013
DocketNo. 13-CA-595
StatusPublished
Cited by12 cases

This text of 131 So. 3d 1059 (Christiano v. Southern Scrap Recycling) 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
Christiano v. Southern Scrap Recycling, 131 So. 3d 1059, 13 La.App. 5 Cir. 595, 2013 WL 6839088, 2013 La. App. LEXIS 2876 (La. Ct. App. 2013).

Opinion

JUDE G. GRAVOIS, Judge.

12Plaintiffs have appealed the trial court’s grant of defendant’s motion for an involuntary dismissal of their case. For the reasons that follow, we affirm.

PROCEDURAL BACKGROUND AND FACTS

On October 18, 2007, plaintiffs, Connie and Anthony Christiano, filed suit against Southern Scrap Material Co., LLC1 (“Southern Scrap”).2 The petition alleged that on October 19, 2006, plaintiffs were customers at Southern Scrap’s facility in [1061]*1061Westwego, Louisiana, when Mrs. Christi-ano fell after encountering a slippery substance on a pedestrian walkway. The petition alleged that the accident was unavoidable and unforeseeable and was caused by the fault and negligence of Southern Scrap for failing to provide clean and safe walkways. The petition also alleged that Southern Scrap knew or should have known of the hazard and failed to | .¡correct the hazard, and that Southern Scrap failed to inspect, maintain, clean or repair the walkway.

Southern Scrap answered the petition with a general denial and specifically asserted that the accident was the fault of the victim who failed to see what she should have seen and failed to look where she was going.

After pre-trial discovery and hearings were conducted, the matter eventually proceeded to a one-day judge trial.

At trial, Mrs. Christiano testified that on the day of the accident, she went to Southern Scrap to sell aluminum cans. She was driving a pickup truck which she backed up against a hopper.3 As she was transferring the cans into the hopper, one of her cans fell to the ground. She described the area where the can fell as “a little sloppy.” She described the “slop” where the can fell as “oil and some other kind of substance” which looked like it had been there for some time. After the can fell, she “looked around to make sure that [she] could step from there to pick up the can. And [she] saw some dry mud,” expounding that the mud was dry because it was “cracked and clay and muddy.” This mud was on top of the cement. The cement around the mud was dry. When she went to pick up the can, Mrs. Christiano was careful only to walk on the dry mud; she did not step in the “slop” by the can. In explaining the cause of her slip and fall, she testified as follows: “It was wet underneath the mud. It was like some more slop, but you couldn’t see it just by looking at it. It was like it was dry.” She stated that there was “slop” underneath the dried mud. When she stepped on the dried mud, “it gave way and made [her] slide,” causing her fall. There were no signs or other notifications in the area to indicate that the area was dangerous to walk on.

|4Mrs. Christiano had been going to Southern Scrap to sell cans every two to three months for six years. At no time had she ever seen anyone hosing or cleaning the cement in the area where she fell. She admitted that she did observe Southern Scrap personnel picking up cans off the ground in this area. She confirmed that she had seen dried mud on the cement in this area on other occasions, but this was the first time that she had stepped on any of the dried mud.

On cross-examination, Mrs. Christiano admitted that on the day of the accident, the weather was clear and that it had not been raining. She explained that she was looking down the entire time as she walked around to the side of the hopper to retrieve the can that had fallen in the “slop.” There was an area of dried mud behind the fallen can that was approximately three feet long and two feet wide. In order to reach the fallen can, Mrs. Christi-ano stated that she could not have avoided the dried mud. She stated that the mud appeared thick enough and sturdy enough for her to walk on. Although there was “slop” next to the dried mud, she did not think or know that there was “slop” underneath the dried mud. She placed one foot on the dried mud, and when she went to place her other foot on the dried mud, it [1062]*1062gave way and she slipped and fell. She fell on her butt and injured her wrist in the fall. She admitted that there were no holes or cracks on the cement; rather, it was the “slop” and mud that caused her to fall.

Mrs. Christiano admitted that she could have asked a nearby employee of Southern Scrap (identified as “Leroy Carter”) to retrieve the fallen can, but did not do so because he was busy with other people who had come to sell cans. She admitted that she did not know how long the mud had been there, but estimated that it was there “longer than a day” because “it was all dried up.” She did not know how the mud or the “slop” got on the side of the hopper.

|BAnthony Christiano, Mrs. Christiano’s husband, testified that he was also putting cans in the hopper when Mrs. Christiano fell. He stated that he had listened to her testimony at trial and that he agreed with her testimony as to how the accident occurred.4

Plaintiffs then rested their case, at which point Southern Scrap moved for an involuntary dismissal of the case pursuant to Louisiana Code of Civil Procedure article 1672(B). Southern Scrap argued that in order to prevail, plaintiffs had to prove that Southern Scrap had custody and control of the premises (which Southern Scrap admitted), that Southern Scrap was negligent or acted unreasonably in failing to keep the premises clean, and that Southern Scrap knew or should have known of the dangerous condition. Southern Scrap argued that if the condition was open and obvious, plaintiffs could not prevail. Southern Scrap asserted that plaintiffs had not proved that Southern Scrap had actual knowledge or constructive knowledge of the alleged dangerous condition, and that there was no evidence as to where the “slop” came from or how long it had been present. Southern Scrap further argued that plaintiffs failed to prove that Southern Scrap did not conduct reasonable inspections, and that plaintiffs admitted that the can fell into an area with oil and mud and that Mrs. Christiano voluntarily stepped into that dangerous area. It further argued that Mrs. Christiano admitted that she could have stepped in another area, could have grabbed on to the side of the hopper, or could have asked Southern Scrap’s employee, Mr. Carter, for assistance.

Plaintiffs’ counsel responded that the dangerous condition in question was not open and obvious, that Mrs. Christiano acted reasonably, and that she was | ^presented with a “hidden trap,” something that she could not see. Plaintiffs also pointed out that Mrs. Christiano’s testimony was not rebutted. Plaintiffs argued that Southern Scrap could not and did not produce documents showing the existence of any cleanup policies or procedures — thereby admitting that no such documents exist. Plaintiffs further argued that Southern Scrap had a duty to protect and warn Mrs. Christiano and that it breached that duty.

Defense counsel responded that plaintiffs had the burden of proof and failed to [1063]*1063prove there was a lack of inspection procedures. Counsel further argued that plaintiffs also failed to prove exactly where Southern Scrap’s employee, Mr. Carter, was located at the time of Mrs. Christi-ano’s fall, and whether or not he was in a position to warn plaintiffs. Counsel reiterated that the alleged danger was open and obvious.

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Cite This Page — Counsel Stack

Bluebook (online)
131 So. 3d 1059, 13 La.App. 5 Cir. 595, 2013 WL 6839088, 2013 La. App. LEXIS 2876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christiano-v-southern-scrap-recycling-lactapp-2013.