Dillenkofer v. Marrero Day Care Center, Inc.

221 So. 3d 279, 16 La.App. 5 Cir. 713, 2017 WL 2265425, 2017 La. App. LEXIS 951
CourtLouisiana Court of Appeal
DecidedMay 24, 2017
DocketNO. 16-CA-713
StatusPublished
Cited by6 cases

This text of 221 So. 3d 279 (Dillenkofer v. Marrero Day Care Center, Inc.) 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
Dillenkofer v. Marrero Day Care Center, Inc., 221 So. 3d 279, 16 La.App. 5 Cir. 713, 2017 WL 2265425, 2017 La. App. LEXIS 951 (La. Ct. App. 2017).

Opinion

CHAISSON, J.

|, Kristina Dillenkoffer, individually and on behalf of her minor children, Andrew Bledsoe, Aaron Dillenkoffer, and Giovanni [281]*281Rodriguez, appeals a judgment from the trial court that granted a motion for summary judgment filed by Marrero Day Care Center, Inc., dismissing her claims with prejudice. For the following reasons, we reverse the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

This case arises from an accident on February 24, 2014, at the Marrero Day Care Center (“the Center”) located in Marrero, Louisiana. On that day, Ms. Dil-lenkoffer went to the day care center to pick up her minor son, Andrew Bledsoe. As Ms. Dillenkoffer was exiting the front of the building, she fell down the entrance stairway to the building. At the time of the fall, Ms. Dillenkoffer was 32 weeks pregnant, carrying her 18-month-old son Aaron on her right hip and talking on her cellular phone. She suffered injuries including a fractured tibia and fibula. Her son, Aaron, suffered a broken clavicle and a bruised head. There were no witnesses to the incident, but help arrived almost immediately afterwards. Ms. Dillenkoffer and her children were taken to the hospital by ambulance.

On October 6, 2014, Ms. Dillenkoffer filed a petition for damages against the Center wherein she alleged that it is responsible under all applicable Louisiana Code articles for the damage caused by its failure to warn of a dangerous condition, allowing a hazardous and dangerous condition to exist on its premises, and allowing for a defective stairway. Her alleged damages include lost earnings, physical pain, and medical expenses, as well as loss of consortium claims for the children. In its answer to the petition, the Center acknowledged that an accident occurred, but denied the existence of any unreasonably dangerous hazard or condition and affirmatively averred that the sole and proximate cause of the accident was Ms. Dillen-koffer’s own negligence by tripping and falling of her own | ^accord, failing to utilize the provided handrail, and walking and talking on a cellular phone while holding a baby.

Following discovery, a motion for summary judgment was filed by the Center in which it argued that, based on the deposition testimony of Ms. Dillenkoffer and the report of her expert witness that examined the stairway, she could not meet her burden of proof. In particular, the Center argued that Ms. Dillenkoffer could not prove that: (1) the property was defective; (2) a defective condition caused the fall; or (3) the Center knew or should have known of an unreasonably dangerous defective condition. Therefore, the Center argued, it was entitled to summary judgment as a matter of law. In opposition to this motion, Ms. Dillenkoffer argued that there were genuine issues of material fact as to whether the front stairs presented numerous unreasonably dangerous conditions that substantially contributed to and in fact caused her to fall.

After a hearing on the motion, the trial court entered a judgment granting the motion for summary judgment and dismissing Ms. Dillenkoffer’s claims with prejudice. This timely appeal follows.

On appeal, Ms. Dillenkoffer argues that the trial court erred in granting the motion for summary judgment because the expert witness report identifies several defects in the stairway that caused Ms. Dillenkoffer’s fall, thereby creating genuine issues of material fact that preclude granting a motion for summary judgment.

DISCUSSION

In Pouncy v. Winn-Dixie La., Inc., 15-189 (La.App. 5 Cir. 10/28/15), 178 So.3d 603, 605, this Court explained the review of the denial or grant of summary judgments as follows:

[282]*282, A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action.
Is A motion for summary judgment should 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 mover is entitled to judgment as a matter of law. A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit; An issue is genuine if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue.
Under La. C.C.P. art 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence- of factual- support for one or more elements essential to the adverse party’s claim, action, or defense. The nonmoving party must then produce factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted.
Appellate courts review a judgment granting or denying a motion for summary judgment de novo, Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. (Internal citations omitted).

Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Melerine v. Jefferson Par. Sch. Bd., 16-469 (La.App. 5 Cir. 2/8/17), 210 So.3d 929. Two theories of liability are available in Louisiana to a plaintiff claiming injury caused by a thing’s condition. Bourquard v. Winn Dixie La., Inc., 04-1150 (La.App. 5 Cir. 3/1/05), 900 So.2d 131, 135. The first theory is negligence, under Articles 2315 and 2316 of the Louisiana Civil Code, and the second theory is strict liability under Article 2317 of the Louisiana Civil Code. Id. Under both theories, the plaintiff has the burden of proving that the thing’s condition presented an unreasonable risk of harm, or was defective, and that this condition was a cause-in-fact of the plaintiffs injuries. Id, Both theories employ a duty-risk analysis on a case by case basis. Id. The plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, that the 14defendant owed a duty of care to the plaintiff, that the requisite duty was breached by the defendant, and that the risk of the harm was within the scope of the protection afforded by the duty breached. Id.

In support of its motion for summary judgment, the Center argued that Ms. Dil-lenkoffer could not meet her evidentiary burden of proving what caused her to fall because during her deposition testimony, she testified that.she was unable to recall exactly what caused her to fall. In response, Ms. Dillenkoffer does not dispute that she is unable to. state exactly what caused her to fall. She contends, however, that trip-and-fall victims are often unaware [283]

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221 So. 3d 279, 16 La.App. 5 Cir. 713, 2017 WL 2265425, 2017 La. App. LEXIS 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillenkofer-v-marrero-day-care-center-inc-lactapp-2017.