Hooper v. Brown

171 So. 3d 995, 2015 WL 2449405
CourtLouisiana Court of Appeal
DecidedMay 22, 2015
DocketNo. 2015-CA-0339
StatusPublished
Cited by14 cases

This text of 171 So. 3d 995 (Hooper v. Brown) 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
Hooper v. Brown, 171 So. 3d 995, 2015 WL 2449405 (La. Ct. App. 2015).

Opinion

PAUL A. BONIN, Judge.

11 Jennifer Hooper was seriously injured when she, while using crutches, stepped through rotten floorboards in the area of a small, preexisting hole on the porch of her leased home. She sued her landlords, Val and Mary Brown, and their insurer, Encompass Property and Casualty Company for damages due to her injuries. The Browns filed a motion for summary judgment in which they asserted that because the rotten condition of the porch’s floorboards was, and had been, actually known by Ms. Hooper and indeed was open and obvious to everyone using the porch, they owed her no duty and were entitled to a dismissal with prejudice of her lawsuit against them. The trial judge denied the motion primarily on the basis that genuine issues of material fact exist as to the cause of Ms. Hooper’s fall and whether the hole was open and obvious to all.

The Browns timely filed an application for supervisory review of the interlocutory ruling. Applying the Herlitz considerations,1 we granted a writ of Rcertiorari, directed that the full trial court record be filed with us, and afforded the parties an opportunity for further briefing and oral argument. On our de novo review of the denial of the Browns’ motion for summary judgment, we conclude that the trial judge [998]*998correctly denied the Browns’ motion for summary judgment and accordingly affirm her ruling.2

We explain our decision in detail below.

I

We first discuss this matter’s history. Ms. Hooper filed suit against the Browns and their insurer on February 14, 2014. In her petition, Ms. Hooper alleges that she signed a lease with the Browns in January 2011 to rent an apartment located at 716 Weiblan. Place in New Orleans, Louisiana. The lease term ran from February

1. 2011 through January 31, 20Í2. Ms. Hooper alleges that she moved into the apartment shortly thereafter and that she renewed the lease and continued to reside there until September 2013. Ms. Hooper’s petition also alleges that at the time she initially moved in, the Browns pointed out to her that the apartment’s front porch contained a defect in that a portion of one of its boards had rotted out leaving a hole. Ms. Hooper alleges that the Browns promised, yet failed, to fix the hole' several times over the course of her tenancy.

Ms. Hooper’s petition further asserts that, in the fall of 2013, she injured her leg and was forced to walk with the assistance of crutches. She also claims that on |sSeptember 11, 2013, she was walking up the stairs leading to the porch when she placed the base of one crutch near the hole. The base of the crutch broke through the rotten wood and became lodged in the hole, causing her to fall. Ms. Hooper alleges' that as a result she suffered a fracture of her right femoral neck.

The petition asserts that Ms, Hooper’s injuries were caused by the Browns’ failure to: 1) properly maintain the premises; 2) adequately inspect the premises; and 3) warn her of an unreasonably dangerous condition. Ms. Hooper, accordingly, claims that the Browns and their insurer are liable to her for damages.

On December 17, 2014, the Browns filed a motion for summary judgment stating that Ms. Hooper’s accident was caused when she placed the base of her crutch into the hole on the porch. Because the hole was a condition that was open and obvious to all, the Browns asserted, they had no duty to warn Ms. Hooper about it, or protect her from this harm. The Browns, accordingly, argued that since Ms. Hooper could not establish the duty element of her action, and there was no genuine issue of material fact, they were entitled to a judgment of dismissal as a matter of law.

In support of their motion, the Browns submitted Ms. Hooper’s petition for damages, a photocopied photograph of the porch taken in April of 2011, and excerpts from several deposition transcripts. Ms. Hooper filed- an opposition memorandum on January 21, 2015. She argued in the trial court that the Browns’ motion should be denied because there are genuine issues of material fact as to whether the hole was open and obvious to all. She, similarly, asserted that a |4genuine issue of material fact exists as to whether her fall was caused by the placement of her crutch in the hole or whether it was the result of rotten wood giving way beneath the crutch.3 In 'support of her opposition, Ms. Hooper attached excerpts from several deposition transcripts, several additional photocopies of photographs purporting to [999]*999show the hole, and an affidavit that she signed. In response, the Browns filed a supplemental memorandum on January 29, 2015, and attached excerpts from the deposition transcript of George Hero, their expert architect.

The trial court was confronted, therefore, with whether a genuine issue of fact existed with respect to the cause of Ms. Hooper’s fall and whether the facts established that the hole in the porch was a condition that was open and obvious to all. The parties argued the merits of the Browns’ motion before the trial court on January 30, 2015. The trial judge denied the Browns’ motion and recognized, over the course of oral argument, several genuine issues of material fact. For example, the trial judge observed that the cause of the accident was uncertain: “But let me ask you something. When the crutch went into it, did the wood just rot out over time, which caused the hole to get bigger or did the wood get soft as a result of it? Because you could see something that i[s] open and obvious as a hole, but if the wood around it got softer and rotted out as a result of it, then that is not really open and obvious.... ” Later, as she was denying the motion, the trial judge also noted [¡/‘that there exists a genuine issue of material fact as to whether or not that hole is open or obvious.” After their motion was denied, the Browns sought timely supervisory review of the trial judge’s ruling.

II

We now examine the statutory law and jurisprudence which governs our review of the Browns’ motion for summary judgment, sets out the general contours of Louisiana’s law on unreasonably dangerous conditions found within buildings, and interprets the “open and obvious to all” doctrine.

A

We apply a de novo standard of review in examining trial court rulings on summary judgment motions. See Hare v. Paleo Data, Inc., 11-1034, p. 9 (La.App. 4 Cir. 4/4/12), 89 So.3d 380, 387. We, accordingly, use the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Id. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966 B(2); Catahoula Parish School Board v. Louisiana Machinery Rentals, LLC, 12-2504, pp. 8-9 (La.10/15/13), 124 So.3d 1065, 1071.

On a motion for summary judgment, the burden of proof remains with the movant. La. C.C.P. art. 966 C(2). However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of | ^factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.

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171 So. 3d 995, 2015 WL 2449405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hooper-v-brown-lactapp-2015.