Nancy Joan Hays and William Robert Hays, Sr. v. H2COW Properties, LLC d/b/a Walk-Ons Restaurant

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT f£ NO. 2023 CA 0129

NANCY JOAN HAYS AND WILLIAM ROBERT HAYS, SR.

VERSUS

H2COW PROPERTIES LLC, D/ B/ A WALK- ONS RESTAURANT

Judgment Rendered: SEP 15 2023

On Appeal from the 23rd Judicial District Court Parish of Ascension, State of Louisiana Trial Court No. 130843

The Honorable Steven Tureau, Judge Presiding

Jill L. Craft Attorneys for Plaintiffs -Appellants, W. Brett Conrad, Jr. Nancy Joan Hays and Baton Rouge, Louisiana William Robert Hays, Sr.

Curt L. Rome Attorneys for Defendant -Appellant, W. Trevor Smith DBMC Restaurants of Gonzales, New Orleans, Louisiana Louisiana, LLC ( Walk-On' s)

BEFORE: WELCH, PENZATO, AND WOLFE, JJ. WOLFE, J.

In this personal injury action, the trial court granted the defendant' s motion to

limit the testimony of plaintiffs' expert and further found that the defendant was

entitled to summary judgment and dismissed plaintiffs' claims. For the reasons that

follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Nancy Hays, was injured on the night of December 9, 2020, when

she fell while leaving the Walk-On' s restaurant in Gonzales, Louisiana. Mrs. Hays

and her husband, William Hays, had been inside Walk-On' s for less than an hour

that evening, attending a family celebration. It was dark outside when they exited

the restaurant. Mr. and Mrs. Hays were talking as they walked down the handicap

ramp to access the parking lot and their vehicle. When Mr. and Mrs. Hays reached

the area at the base of the ramp, they both thought they were in the parking lot but,

in reality, they were actually still on the sidewalk and had about eight more steps to

reach the parking lot. Mr. Hays followed Mrs. Hays as they continued to walk

toward their vehicle. Mrs. Hays fell forward into the parking lot when her foot

missed the curb. Mrs. Hays knew she was badly injured because she immediately

felt pain in her right shoulder and left wrist as she lay in the parking lot. Mr. and

Mrs. Hays described the curb as " standard" with no paint or other markings, and

they both described the area around the curb as " dark." Because they needed light

to assess Mrs. Hays' s injuries, a bystander pulled his truck close by to block cars

and to shine headlights in the area while Mrs. Hays was on the ground. A Walk-

On' s manager, Megan Seneca, documented Mrs. Hays' s fall and filed an incident

report. Mrs. Hays was helped to her vehicle and ultimately underwent surgery on

December 17, 2020, to repair her fractured shoulder.

On February 22, 2021, Mr. and Mrs. Hays filed a petition for damages against

the owner of the Walk- On' s restaurant, DBMC Restaurants of Gonzales, Louisiana,

2 LLC (hereafter referred to as " Walk- On' s").' Mr. and Mrs. Hays asserted, among

other things, that they sustained personal injuries due to an unreasonably dangerous

area at the base of the handicap ramp, curb, and parking lot at Walk-On' s, because

the curb was unmarked and the area lacked adequate exterior lighting/illumination.

Walk-On' s filed an answer, generally denying the allegations of the petition. After

discovery took place and experts were retained, Walk-On' s filed a motion for

summary judgment on August 31, 2022. Walk-On' s also filed two evidentiary

motions — a motion to exclude or limit the testimony of Mr. and Mrs. Hays' s expert,

Philip Beard, and a motion in limine to limit evidence of other claims against Walk-

On' s. Mr. and Mrs. Hays opposed all of the motions.

In support of its motion for summary judgment, Walk-On' s submitted the

deposition testimony of Mr. and Mrs. Hays, their daughter, Karen Braud, the human

resource manager for Walk-On' s, Jason Vidaurre, and the service manager for Walk-

On' s, Megan Seneca. Walk-On' s also submitted an affidavit and report by its expert

engineer, Kevin Vanderbrook. Walk -Ons relied on all of the submitted evidence to

show that there was adequate exterior lighting in the area where Mrs. Hays fell and

there were no defects in the curb or sidewalk or parking lot area. Walk-On' s

maintains that Mrs. Hays simply stepped off the open and obvious curb and fell

because she was looking straight ahead as she walked instead of where she was

stepping. In opposition, Mr. and Mrs. Hays submitted the same depositions and the

affidavit and report of their expert engineer, Philip Beard. Mr. and Mrs. Hays argued

that there are genuine issues of material fact concerning the adequacy of exterior

lighting and the lack of safety markings between the curb and parking lot in the area

at the base of the handicap ramp.

t Mr. and Mrs. Hays originally named H2COW Properties, LLC d/ b/ a Walk -Ons Restaurant, as the defendant, but in a supplemental, amending, and restated petition, they substituted the correct party, DBMC Restaurants of Gonzales, Louisiana, LLC, as the defendant.

3 The trial court scheduled the hearing on Walk-On' s motion for summary

judgment on the same day, October 24, 2022, as the hearing for Walk-On' s

evidentiary motions to exclude/ limit expert testimony and to exclude evidence of

other trip and fall claims at Walk- On' s. The trial court granted the evidentiary

motions in part and granted summary judgment in favor of Walk-On' s, dismissing

Mr. and Mrs. Hays' s claims against Walk-On' s after determining that Walk-On' s

parking lot/ curb area did not constitute an unreasonably dangerous condition. The

trial court signed three separate judgments. The summary judgment dismissing the

lawsuit was signed on November 14, 2022. The two interlocutory judgments

granting the evidentiary motions in part were signed on November 21, 2022. Mr.

and Mrs. Hays appealed the November 14, 2022 judgment granting summary

judgment in favor of Walk-On' s and dismissing their claims.

ASSIGNMENTS OF ERROR

Mr. and Mrs. Hays assign trial court error as follows: ( 1) a risk -utility analysis

should have been used by the trial court, which would have revealed genuine issues

of material fact regarding an unreasonably dangerous condition due to Walk -Ons

lack of lighting, placement of the handicap ramp, and lack of a curb cut/ markings;

2) the trial court failed to consider the evidence in the light most favorable to Mr.

and Mrs. Hays, especially since the two experts disagreed; and ( 3) the trial court

erred in limiting Mr. and Mrs. Hays' s expert' s opinion about the handicap ramp area.

SUMMARY JUDGMENT

Summary judgment procedure is favored and " is designed to secure the just,

speedy, and inexpensive determination of every action ... and shall be construed to

accomplish these ends." La. Code Civ. P. art. 966( A)( 2). In reviewing the trial

court' s decision on a motion for summary judgment, this court applies a de novo

standard of review using the same criteria applied by the trial courts to determine

whether summary judgment is appropriate. Short v. RaceTrac Petroleum, Inc.,

4 2022- 0859 ( La. App. 1 st Cir. 2/ 24/ 23), 361 So. 3d 1051, 1058, writ denied, 2023-

00535 ( La. 617/ 23), 361 So. 3d 973.

The initial burden of proof is on the mover. If the mover will not bear the

burden of proof at trial, the mover' s burden does not require him to negate all

essential elements of the adverse party' s claim, but only to point out to the court the

absence of factual support for one or more of the elements necessary to the adverse

party' s claim. Thereafter, 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. Code Civ. P. art.

966( D)( 1). If the non-moving party fails to produce sufficient factual support in its

opposition that proves the existence of a genuine issue of material fact, Article

966( D)( 1) mandates the granting of the motion for summary judgment.

In ruling on a motion for summary judgment, the trial court' s role is not to

evaluate the weight of the evidence or determine the truth of the matter, but instead

to determine whether there is a genuine issue of triable fact. Short, 361 So. 3d at

1059. Because it is the applicable substantive law that determines materiality,

whether a particular fact in dispute is material can be seen only in light of the

substantive law applicable to the case. Id.

LAW AND ANALYSIS

The Louisiana Supreme Court outlined the law on premises liability in Farrell

v. Circle K Stores, Inc., 2022- 00849 ( La. 3117/ 23), 359 So. 3d 467, 473, a case

involving a slip and fall in a parking lot. We find Farrell to be controlling in this

case. Utilizing a duty/risk analysis to determine whether liability exists, the supreme

court stated:

Under the duty/risk analysis, the plaintiff must prove five separate elements; ( 1) the defendant had a duty to conform his conduct

to a specific standard ( the duty element); ( 2) the defendant' s conduct failed to conform to the appropriate standard ( the breach element); ( 3) the defendant' s substandard conduct was a cause -in -fact of the

5 plaintiff' s injuries ( the cause -in -fact element); ( 4) the defendant' s substandard conduct was a legal cause of the plaintiff' s injuries ( the scope of duty element); and, ( 5) proof of actual damages ( the damages element). If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable.

Farrell, 359 So. 3d at 473 ( citations omitted). Thus, in order to prevail on Walk-

On' s motion for summary judgment, Walk-On' s is required to show an absence of

factual support for any of the elements of Mr. and Mrs. Hays' s cause of action.

We begin the analysis by determining the existence of a duty, which is a

question of law. Farrell, 359 So. 3d at 473. The inquiry in this case is whether Mr.

and Mrs. Hays have any law to support their claim that Walk-On' s owed them a

duty. The sources of the duty in premises liability cases are found in La. Civ. Code

arts. 2315, 2316, 2317, and 2317. 1, and in merchant liability cases, the duty is

outlined in La. R.S. 9: 2800. 6( A). The general rule is that the owner or custodian of

property has a duty to keep the premises in a reasonably safe condition. The owner

or custodian must discover any unreasonably dangerous condition on the premises,

and either correct the condition or warn potential victims of its existence. Id. at 473-

474. Following Farrell, we find that Walk-On' s owed such a duty to Mr. and Mrs.

Hays.

Whether there was a breach of the duty owed is a question of fact or a mixed

question of law and fact. Farrell, 359 So. 3d at 474. To make this determination,

we must apply a risk/ utility balancing test and consider four pertinent factors: ( 1)

the utility of the complained -of condition; ( 2) the likelihood and magnitude of the

harm, including the obviousness and apparentness of the condition; ( 3) the cost of

preventing the harm; and, ( 4) the nature of the plaintiffs activities in terms of social

utility or whether the activities were dangerous by nature. Id. In this case, the

alleged defect is that the area where Mrs. Hays fell was poorly illuminated, and the

curb was unmarked so that it was difficult to see where the sidewalk ended and the

parking lot began. Obviously, Walk -Ons would not have intended the area between

0 the sidewalk, curb, and parking lot to be dangerous to its customers. The utility of

a paved sidewalk and parking lot is apparent, and the outside lighting is particularly

useful and necessary for customers traversing the area at night.

The likelihood and magnitude of the harm, including whether the complained -

of condition was obvious and apparent, is where the analysis becomes problematic

in this case. The record reveals a dispute in the evidence, which we have determined

makes summary judgment inappropriate at this time. Walk-On' s relies on the

existing exterior lighting as sufficient for any person paying attention to where they

are stepping to see the curb between the sidewalk and the parking lot. Mr. and Mrs.

Hays maintain that it was too dark to see where the unpainted curb/parking lot was

located, as they both testified in their depositions they did not realize that, when they

were at the end of the handicap ramp area, they were still on the sidewalk instead of

in the parking lot. Similarly, a factual dispute is found in the affidavits of the two

experts. Walk-On' s expert attested to the lack of defects in the curb and sidewalk

area and the " functional" lighting, which was reasonable for anyone paying attention

to where they were walking. Conversely, Mr. and Mrs. Hays' s expert stated that the

low-level lighting in the area and inadequate curb -edge painting rendered the

unobserved curb unreasonably dangerous and hazardous.

In Farrell, 359 So. 3d at 478, the supreme court clarified that for " a hazard to

be considered open and obvious, it must be one that is open and obvious to all who

may encounter it. The open and obvious concept asks whether the complained of

condition would be apparent to any reasonable person who might encounter it."

Furthermore, while a plaintiff' s knowledge is appropriate for assessing fault and

potential comparative fault, it is not appropriate for summary judgment proceedings.

Id. In our review, we find that Mr. and Mrs. Hays presented sufficient factual

evidence in their opposition to raise a genuine issue of material fact concerning the

adequacy of the lighting and markings in the sidewalk/ curb area where Mrs. Hays

7 fell. The question is not whether Mr. and Mrs. Hays are likely to prevail on the

factual issues at trial, but simply whether there are genuine issues of material fact

for trial.

Given our ruling, we pretermit any further discussion of the remaining

elements in Mr. and Mrs. Hays' s cause of action, as well as the interlocutory

evidentiary rulings, which may be altered by the trial court at its discretion and on

its own motion at any time prior to rendition of a final judgment. See VaSalle v.

Wal- Mart Stores, Inc., 2001- 0462 ( La. 11128101), 801 So.2d 331, 334- 335.

Summary judgment on the issue of whether or not an unreasonably dangerous

condition existed is not warranted in this case, since it requires credibility

determinations, evaluations of testimony for truth, and the weighing of conflicting

evidence. A trial on the merits is necessary. For this reason, we find the trial court

erred in granting summary judgment in favor of Walk-On' s.

DECREE

For the assigned reasons, we reverse the November 14, 2022 judgment

granting summary judgment in favor of Walk-On' s owner, DBMC Restaurants of

Gonzales, Louisiana, LLC, and dismissing the personal injury claims of Nancy Joan

Hays and William Robert Hays, Sr. We remand the case to the trial court for further

proceedings consistent with this decision. All costs of this appeal are assessed to

DBMC Restaurants of Gonzales, Louisiana, LLC.

REVERSED AND REMANDED.