Judgment rendered April 22, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,101-CW No. 53,332-CA (Consolidated Cases)
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
No. 53,101-CW No. 53,332-CA
KATHY HARRIS KATHY HARRIS Respondent Plaintiff-Appellant
versus versus
CITY OF SHREVEPORT CITY OF SHREVEPORT Applicant Defendant-Appellee
On Application for Writs and On Appeal from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 597,766
Honorable Ramon Lafitte, Judge
STROUD, CARMOUCHE & BUCKLE Counsel for By: Nichole M. Buckle Applicant-Appellee, City of Shreveport
MIRAMON LAW, INC. Counsel for By: Patricia N. Miramon Respondent-Appellant Jordan Nicole George Young Kathy Harris CASTEN & PEARCE Counsel for By: Marshall Reeves Pearce Respondent-Appellee Deborah Renee Jackson
DALE G. COX, JR. Counsel for Respondent Caddo Parish School Board
Before MOORE, STEPHENS, and McCALLUM, JJ. STEPHENS, J.
This matter involves a writ grant to docket consolidated with an
appeal, both stemming from a lawsuit by plaintiff, Kathy Harris, in the First
Judicial District Court, Parish of Caddo, State of Louisiana. Her claims are
against defendants, the City of Shreveport (the “City”) and Deborah Renee
Jackson. In response to Harris’s petition, the City and Jackson filed separate
motions for summary judgment; the City’s motion was denied and Jackson’s
motion was granted. It is those judgments we consider on review.
FACTS AND PROCEDURAL HISTORY
Kathy Harris filed a personal injury lawsuit against defendants,
alleging that as part of her employment with the Caddo Parish School Board,
she went to check the reading on the water meter for Westwood Elementary
School on February 6, 2016.1 Returning to the school grounds via a
sidewalk, Harris veered off the sidewalk and tripped and fell into a hole
containing another city water meter. That hole was near the sidewalk
adjacent to a residence located at 7414 Timberview Lane, Shreveport,
owned by Jackson. As described by Harris, both feet went down into the
hole, and she hit a parking sign pole as she fell. According to Harris, her
alleged accident occurred in an area “under the care, custody, and control”
of the City and Jackson. Specifically, Harris stated the City was aware of
the defects in the area because its meter readers regularly assessed the area
when reading the meter, and Jackson was aware of the area because she was
responsible for the grass around the hole.
1 Ultimately, the Caddo Parish School Board intervened as the applicable workers’ compensation carrier. Jackson filed a motion for summary judgment, asserting she was not
responsible for maintenance or care of the open water meter causing Harris’s
fall, and she had no prior notice of any issue with the water meter located in
front of her property.
The City also filed a motion for summary judgment, arguing Harris
could not establish the essential elements of her claims of negligence and
strict liability. The City asserted Harris could not show that the water meter
created an unreasonable risk of harm or the City had actual or constructive
notice of the condition, two required elements of her claim against a public
entity for damages due to a defective thing. The City maintained the
uncovered water meter was not an unreasonably dangerous condition
because its condition was open and obvious, and the condition existed in a
grassy area that covered an irregular, uneven surface. The City further
argued Harris offered no proof it had any notice, either actual or
constructive, that the water meter cover was damaged or missing, and
offered no evidence to demonstrate the water meter was uncovered prior to
her accident for a period of time sufficient to inpute knowledge to the City.
Harris opposed the motions for summary judgment, relying on the
expert opinion of Philip Beard, a professional engineer. In addition to
Beard’s report, the court considered the depositions of Harris and Jackson.
Following arguments, the trial court signed a written judgment, granting the
motion for summary judgment in favor of Jackson, dismissing all claims of
Harris and the Caddo Parish School Board against her. Harris’s application
for supervisory review followed. Concluding the trial court’s ruling was a
final appealable judgment, the matter was remanded to the trial court for
2 perfection as an appeal. Thus, the matter is before this court as an appeal.
Harris v. City of Shreveport, 53,088-CW (La. App. 2 Cir. 7/11/19).
As to the City’s motion, it was denied by the trial court, which
determined that the broken cover on the water meter in a hole measuring 19
inches deep was not a minor hazard or condition to be expected in a yard.
Further, the trial court concluded there was a question of fact as to whether
the condition existed when the water meter was checked by the City on
January 12, 2016. The trial court subsequently signed a written judgment,
memorializing the ruling made in open court, and an application for
supervisory review by the City followed. The writ was granted to docket for
review. Harris v. City of Shreveport, 53,101-CW (La. App. 2 Cir. 7/25/19).
DISCUSSION
Legal Principles: Summary Judgment
On review are two motions for summary judgment by both
defendants, Jackson and the City; as stated, the trial court granted Jackson’s
motion and denied the City’s. Appellate courts review motions for summary
judgment de novo, using the same criteria that govern the district court’s
consideration of whether summary judgment is appropriate. Peironnet v.
Matador Res. Co., 2012-2292, 2012-2377 (La. 6/28/13), 144 So. 3d 791;
Marioneaux v. Marioneaux, 52,212 (La. App. 2 Cir. 8/15/18), 254 So. 3d 13.
A motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all or part of the relief prayed
for by a litigant. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So. 3d 1002;
Marioneaux, supra. Summary judgment procedure is favored and is
designed to secure the just, speedy, and inexpensive determination of
actions. La. C.C.P. art. 966(A)(2). A motion for summary judgment shall 3 be granted if the motion, memorandum, and supporting documents show
there is no genuine issue as to material fact and the mover is entitled to
judgment as a matter of law. La. C.C.P. art. 966(A)(3).
A fact is material if it potentially ensures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the legal
dispute. A genuine issue of material fact is one as to which reasonable
persons could disagree; if reasonable persons could reach only one
conclusion, there is no need for trial on that issue and summary judgment is
appropriate. Jackson v. City of New Orleans, 2012-2742, 2012-2743 (La.
1/28/14), 144 So. 3d 876, cert. denied, 574 U.S. 869, 135 S. Ct. 197, 190 L.
Ed. 2d 130 (2014); Marioneaux, supra. In determining whether an issue is
genuine, a court should not consider the merits, make credibility
determinations, evaluate testimony, or weigh evidence. Marioneaux, supra;
Chanler v. Jamestown Ins. Co., 51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d
614, writ denied, 2017-01251 (La. 10/27/17), 228 So. 3d 1230.
The burden of proof rests with the mover. Nevertheless, if the mover
will not bear the burden of proof at trial on the issue that is before the court
on the motion for summary judgment, the mover’s burden on the motion
does not require him to negate all essential elements of the adverse party’s
claim, action, or defense, but rather to point out to the court the absence of
factual support for one or more elements essential to the adverse party’s
claim, action, or defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a genuine issue of
material fact or that the mover is not entitled to judgment as a matter of law.
La. C.C.P. art. 966(D)(1).
4 Legal Principles: Premises Liability
Generally, La. C.C. art. 2317 states, “We are responsible, not only for
the damage occasioned by our own act, but for that which is caused by the
act of persons for whom we are answerable, or of the things which we have
in our custody.” More specifically, La. C.C. art. 2317.1 provides in
pertinent part,
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
Additionally, a public entity is responsible for damages caused by the
condition of buildings within its care and custody. La. R.S. 9:2800.
To recover for damages caused by a defective thing, the plaintiff must
prove the thing was in the defendant’s custody, the thing contained a defect
which presented an unreasonable risk of harm to others, this defective
condition caused the damage, and the defendant knew or should have known
of the defect. Wells v. Town of Delhi, 51,222 (La. App. 2 Cir. 4/5/17), 216
So. 3d 1095, writ denied, 2017-0753 (La. 9/22/17), 227 So. 3d 821; Moody
v. Blanchard Place Apts., 34,587 (La. App. 2 Cir. 06/20/01), 793 So. 2d 281,
writ denied, 2001-2582 (La. 12/14/01), 804 So. 2d 647.
Furthermore, to recover against a public entity for damages due to a
defective thing, a plaintiff must prove: (1) the thing which caused the
damage was in the custody of the public entity; (2) the thing was defective
due to a condition creating an unreasonable risk of harm; (3) the entity had
actual or constructive notice of the condition yet failed to take corrective
action within a reasonable period of time; and (4) the defect was a cause of 5 plaintiff’s harm. Jones v. Hawkins, 1998-1259, 1998-1288 (La. 3/19/99),
731 So. 2d 216; Wells, supra; Ricks v. City of Shreveport, 42,675 (La. App.
2 Cir. 10/24/07), 968 So. 2d 863. Failure to meet any one statutory element
will defeat a negligence claim against a public entity. Breitling v.
Shreveport, 44,112 (La. App. 2 Cir. 5/13/09), 12 So. 3d 457, writ not cons.,
2009-1330 (La. 9/25/09), 18 So. 3d 95.
Courts have adopted a risk-utility balancing test to determine whether
a condition is unreasonably dangerous, wherein the trier of fact balances the
gravity and the risk of harm against the individual and societal utility and the
cost and feasibility of repair. Chambers v. Vill. of Moreauville, 2011-898
(La. 1/24/12), 85 So. 3d 593; Stevens v. City of Shreveport, 49,437 (La. App.
2 Cir. 11/19/14), 152 So. 3d 1071, writ denied, 2015-0197 (La. 4/17/15),
168 So. 3d 399, cert. denied, --- U.S. ---, 136 S. Ct. 154, 193 L. Ed. 2d 114
(2015); Dowdy v. City of Monroe, 46,693 (La. App. 2 Cir. 11/2/11), 78 So.
3d 791. Although municipalities have a duty to maintain things in their
custody in a reasonably safe condition, they are not insurers of the safety of
pedestrians and are not required to maintain things in their custody in perfect
condition. To be liable for damages caused by a defect, the defect must be
dangerous or calculated to cause injury. Chambers, supra.
However, defendants generally have no duty to protect against an
open and obvious hazard. If the facts of a particular case show that the
complained-of condition should have been obvious to all, the condition may
not be unreasonably dangerous, and the defendant may owe no duty to the
plaintiff. Broussard v. State ex rel. Office of State Bldgs., 2012-1238 (La.
4/5/13), 113 So. 3d 175; Flipping v. JWH Properties, LLC, 50,648 (La. App.
2 Cir. 6/8/16), 196 So. 3d 149. 6 Before a municipality can be held liable for injuries resulting from a
defect in the condition of a thing in its custody, the municipality must have
had actual or constructive notice of the particular defect that gave rise to the
injury. Stevens, supra. Failure to meet this statutory element will defeat a
negligence claim against a public entity. Actual notice is knowledge of
dangerous defects or conditions by a corporate officer or employee of the
public entity having a duty either to keep the property involved in good
repair or to report defects and dangerous conditions to the proper authorities.
Smithwick v. City of Farmerville, 45,362 (La. App. 2 Cir. 6/23/10), 42 So.
3d 1039, writ denied, 2010-2013 (La. 11/12/10), 49 So. 3d 888.
Constructive notice is defined by La. R.S. 9:2800 as the existence of
facts which imply actual knowledge. Ordinarily, to establish constructive
notice, plaintiffs must prove that the defect causing the injury existed over a
sufficient length of time to establish that reasonable diligence would have
led to its discovery and repair. Stevens, supra; Smithwick, supra. The
plaintiff must make a positive showing of the existence of the condition
prior to the fall. Ton v. Albertson’s, LLC, 50,212 (La. App. 2 Cir. 11/18/15),
182 So. 3d 246, writ denied, 2015-2320 (La. 2/5/16), 186 So. 3d 1169.
The City’s Motion for Summary Judgment
On review, the City argues that its motion for summary judgment
should have been granted because Harris could not meet her burden of
proving each essential element of her claim. The City asserts that in
granting Jackson’s motion, the trial court properly found Jackson’s grass
was not unreasonably high to cover the water meter hole. First, the City
maintains the water meter hole was located in Jackson’s grassy yard adjacent
to the sidewalk and in an area not intended for pedestrian traffic. As such, 7 the hole did not present an unreasonable risk of harm. Second, the City
argues Harris offers only speculation and conjecture of the City’s actual or
constructive knowledge of the condition, and she does not offer sufficient
issues of material fact regarding the City’s knowledge. We disagree.
Here, because the City will not bear the burden of proof at trial, it is
not required to negate all essential elements of Harris’s claim, but rather
need only point out the absence of factual support for one or more essential
element. The burden is then on Harris to produce factual support sufficient
to establish the existence of a genuine issue of material fact. Of the various
elements in a premises liability case against a municipality, at issue in this
case are whether the open water meter created an unreasonable risk of harm
and whether the City had actual or constructive notice of the open water
meter. We believe genuine issues of material fact exist as to each of those
elements.
Initially, we observe Harris’s reliance on the expert report and
affidavit of a professional engineer, Beard, supporting her opposition to the
City’s motion. Notably, when the party opposing the summary judgment
motion submits expert opinion evidence that would be admissible and is
sufficient to allow a reasonable fact finder to conclude the expert’s opinion
on a material fact more likely than not is true, the court should deny the
summary judgment motion. Willis v. Medders, 2000-2507 (La. 12/8/00),
775 So. 2d 1049; Wood v. State, ex rel. Dep’t of Wildlife & Fisheries, 43,457
(La. App. 2 Cir. 8/13/08), 989 So. 2d 280, writ denied, 2008-2192 (La.
11/14/08), 996 So. 2d 1094. Although the trial court’s reasons for judgment
are unclear as to what consideration it gave to Beard’s report, we find a
genuine issue of material fact was created by the inferences reasonably 8 drawn from Beard’s affidavit, which sufficiently addresses both elements at
issue.
As to whether the water meter in question created an unreasonable
risk of harm, we observe the record reflects varying degrees of size for the
hole; however, one fact is clear—it was a large hole. Although Harris could
not specifically state its depth, her deposition testimony was that it came up
to her knees when she fell into it. Beard’s expert report elaborates more on
the size and condition of the site. As noted by Beard, Harris’s photographs
reveal parts of the meter’s broken concrete collar that originally surrounded
the meter cover. Beard’s report described the actual hole as follows:
Various views of the accident situs water meter after repairs. . . . The depth of the meter housing to the grade below was measured and found to be approximately, 19 inches ±. Although the depth of the hole that Ms. Harris fell into is unknown, more likely than not it was greater than 19 inches before repairs were made. An interesting observation in photograph P13 is that the actual water meter is not visible. It is likely that the [hole] has been filled with mud such that the meter is buried and not visible. That would make the overall depth of the [hole] between 21 ± inches and 25 ±.
Beard observed there was no lid or cap on the water meter to warn of the
potentially dangerous condition presented by the hole. It was his expert
opinion that the depth of the hole greatly exceeded “acceptable deviations
necessary to prevent tripping in a pedestrian’s path of travel. As a result, the
defect is unreasonably hazardous.” Thus, according to Beard, this hole
constituted an unreasonable risk of harm.
As noted herein, municipalities have a duty to maintain things in their
custody in a reasonably safe condition; however, they are not insurers of the
safety of pedestrians and are not required to maintain things in their custody
in perfect condition. Furthermore, to be liable for damages caused by a
9 defect, the defect must be dangerous or calculated to cause injury.
Considering Harris’s description buttressed by Beard’s expert opinion, we
conclude Harris has established such a fact, i.e., the water meter hole
constituted an unreasonable risk of harm. Thus, as to that issue, there exists
a genuine issue of fact making summary judgment inappropriate.
Regarding whether the City had actual or constructive notice of the
open water meter, Harris’s photographs indicate the probability the hole had
been uncovered for some period of time. In fact, in Beard’s report he opined
that, considering the nature of the defect to the meter, it had existed at least a
month prior to Harris’s incident. Furthermore, and of most importance, the
record reflects the water meter had been read on January 12, 2016, by a City
employee presumably with some level of experience with water meters.
There is a method to the City’s reading and inspection of its meters—
periodically the City has its employees physically inspect its water meters
for usage readings. Clearly, it is reasonable to expect a City employee
would recognize defects or imperfections in the City’s equipment which
would reasonably be a hazard to the public. Considering the nature of the
defect as well as Beard’s opinion regarding the longevity of the deleterious
nature of the water meter, we conclude there exists genuine issues of fact on
whether the City had notice of the defect.
Thus, considering the available evidence, we agree with the trial
court. Here, there exists a material issue of fact whether the water meter in
question created an unreasonable risk of harm to Harris. Additionally, there
is also a material issue of fact as to whether the City had actual or
constructive notice of the condition of its water meter. As such, the City’s
10 motion for summary judgment was properly denied, and the City’s
assignments of merit are without merit.
Jackson’s Motion for Summary Judgment
As to the trial court’s granting of Jackson’s motion for summary
judgment, Harris argues the trial court erred in granting the motion on the
issue of liability and in determining no genuine issues of material fact
existed regarding Jackson’s duty to maintain her property. We disagree.
The duty a landowner owes to persons entering his or her property is
governed by a standard of reasonableness, and a potentially dangerous
condition that should be obvious to all is not unreasonably dangerous. If the
facts of a particular premises liability case show that the complained of
condition should be obvious to all, the condition may not be unreasonably
dangerous, and the defendant may owe no duty to the plaintiff. Todd v.
Angel, 48,687 (La. App. 2 Cir. 1/15/14), 132 So. 3d 453, writ denied, 2014-
0613 (La. 5/16/14), 139 So. 3d 1027; Durmon v. Billings, 38,514 (La. App.
2 Cir. 5/12/04), 873 So. 2d 872, writ denied, 2004-1805 (La. 10/29/04), 885
So. 2d 588.
In the case sub judice, the issue is whether Jackson knew or should
have known her grass obstructed Harris’s vision of the defective water meter
hole, thus creating a duty to Harris, who strayed into her yard. Knowledge is
key to Harris’s claim against Jackson—she must prove that Jackson knew
or, in the exercise of reasonable care, should have known of the defective
condition. Notably, it is not reasonable to expect a grassy area would always
be a “table-top” smooth surface. Johnson v. City of Monroe, 38,388 (La.
App. 2 Cir. 4/7/04), 870 So. 2d 1105, writ denied, 2004-1130 (La. 6/25/04),
876 So. 2d 843. Moreover, it takes more than mere argument of a possibility 11 to raise a genuine issue of fact. Hawkins v. Fowler, 2011-1495 (La. App. 1
Cir. 5/2/12), 92 So. 3d 544, writ denied, 2012-1449 (La. 10/8/12), 93 So. 3d
860.
Here, all of the evidence indicates that while the hole under the
overgrown grass on Jackson’s property was hidden, the unmaintained
condition of the property would have been obvious to everyone, including
Harris. However, ultimately the overgrown grass around the hole was not
the cause of Harris’s injury. Harris’s uninvited entrance onto Jackson’s yard
in lieu of the sidewalk and the existence of the broken water meter in the
hole potentially caused the injury. Notably, Harris testified she did not see
the hole because it was covered by the grass, but Harris also described she
was looking “straight ahead,” i.e., she was not looking down where she was
walking. But for the defective water meter and/or large hole, Harris would
not have been injured. The same cannot be said of the uncut grass. Thus,
Harris cannot establish Jackson had a duty to protect her against the
dangerous condition.
Given the undisputed facts and evidence in this case, we find no error
in the trial court’s grant of summary judgment in favor of Jackson. Harris
failed to prove Jackson should have known the grass in her yard was
obscuring a hole containing a broken water meter, which lay beneath the
surface of the grass on her property and, thus, Harris cannot prove a duty
owed by Jackson. In the absence of any factual support showing that Harris
could meet this burden at trial, summary judgment is mandated. See Gifford
v. Arrington, 2014-2058 (La. 11/26/14), 153 So. 3d 999, 1000 (“if the
adverse party fails to produce factual support sufficient to establish that he
will be able to satisfy his evidentiary burden of proof at trial, there is no 12 genuine issue of material fact”). We therefore affirm the trial court’s
judgment dismissing Harris’s claims against Jackson.
CONCLUSION
The trial court’s judgment granting the motion for summary judgment
by Deborah Renee Jackson is affirmed. Appeal costs by Kathy Harris are
assessed to her. The trial court’s judgment denying the motion for summary
judgment of the City of Shreveport is also affirmed. Pursuant to La. R.S.
13:5112, the appellate court costs in the amount of $2,570.00 incurred in
connection with the supervisory writ filed by the City of Shreveport are
assessed to the City, which have already been paid.
JUDGMENTS AFFIRMED.