Quinn v. GGS, L.L.C.

862 So. 2d 324, 3 La.App. 5 Cir. 682, 2003 La. App. LEXIS 3375, 2003 WL 22900554
CourtLouisiana Court of Appeal
DecidedDecember 9, 2003
DocketNo. 03-CA-682
StatusPublished
Cited by1 cases

This text of 862 So. 2d 324 (Quinn v. GGS, L.L.C.) 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
Quinn v. GGS, L.L.C., 862 So. 2d 324, 3 La.App. 5 Cir. 682, 2003 La. App. LEXIS 3375, 2003 WL 22900554 (La. Ct. App. 2003).

Opinion

MARION F. EDWARDS, Judge.

Plaintiff/appellant Jocelyn Wegmann Quinn appeals a verdict and ensuing judgment of the trial court dismissing her suit against defendants GGS, L.L.C. d/b/a/ Magnolia Shopping Center and Lafayette Insurance Company (Hereinafter “Magnolia”). She also appeals the denial of her Motion For Summary Judgment shortly before trial on the merits took place. We affirm.

Mrs. Quinn testified that she is an employee at the gift shop at Ochsner Foundation Hospital. On November 22, 2000, she left her job at the end of her work day and drove to a nail salon at Magnolia Shopping Center, a place that she frequents. It was almost five o’clock and it was dusk. The area where she parked her car, in a handicapped space next to some mailboxes, was shaded. The nail salon is next to a post office branch. Mrs. Quinn got out of her automobile, walked around to the trunk to put . her purse inside, and then walked across a traffic area to get to the shopping center walkway. She took a few steps, glancing to check for oncoming traffic. On cross-examination, it was pointed out that she had stated in deposition that there were no cars passing, and that the street was clear. However, she testified at trial that she looked left and right, and that two cars passed. She continued to walk, but did not see a hole in the pavement. She traveled in a diagonal direction between the mailboxes and the handicap ramp, when her foot hit something and she tripped. She did not remember taking another step before hitting her arm and shoulder on a concrete post. On the day in question, she had no trouble walking, but had a handicap sticker on her vehicle because she has bursitis, which gives her pain in her hip. Although she looked around generally in the direction that she walked, she was not looking for pot holes on the parking surface. There was no object, such as a car, blocking her view of the pothole.

It did not feel like she had stepped into a pothole, but rather she tripped over the outer edge with her right toe and stumbled, falling almost instantly. Her head was between the right post and the flagpole, and the ramp was in front of her. She goes to the nail salon every two to three weeks, and had not seen the hole before.

Mrs. Quinn’s husband, Terry Quinn, testified that at a little after five o’clock on the day of the accident, he received a phone call telling him about the accident. He arrived at the scene about ten minutes later, and it was turning dark. Mrs. Quinn was lying on the ground moaning and crying. Her head was not close to the concrete posts, but she was relatively close to the hole. Shortly thereafter, two emergency medical technicians helped his wife into the ambulance. It was not easy to see the hole because it was dark, but he believed she tripped on it because of where she was on the ground. He did not recall if there were lights on in the parking lot. [327]*327The hole was very close to the fire lane. Mr. Quinn took photographs of the area, including the hole, on the following day.

Mr. Wilfred Gallardo was qualified as an expert in safety and accident cause analysis. He testified that he reviewed a number of photographs of the accident scene, the scene itself, and Mrs. Quinn’s deposition. He could not measure the hole at the site because of patches. Looking at the pictures, Mr. Gallardo thought the hole was between 4 and 6 feet from the fire lane, or 9-10 feet from the flagpole. Mr. Gallardo opined that the primary cause of the accident was that the hole could not be seen clearly because it tended to blend in, and dusk made it even harder to see. He felt that Mrs. Quinn hit the hole in such a way as to cause her to stumble, and her momentum kept her going. He did not know how many steps she would have taken, stumbling, before she hit the post. At the site, traffic came from the right. It was unlikely, considering the direction in which she was headed, that she tripped over the handicap ramp near where she parked. If she had caught her foot on the ramp she would have been propelled in the other direction. The hole was there in excess of 3 months, and because he also shopped there, Gallardo was aware of holes in the area. It would cost less than one hundred dollars to repair the hole. It was prudent for Mrs. Quinn to look to her left, and not to look at the parking surface because her main concern would be oncoming traffic, and to look in the direction in which she was headed. At the time of day of the accident, the area would have been very shaded.

Charles Wendell, Manger of Magnolia Shopping Center, testified that he inspects the parking lot as does his maintenance employee. When several potholes are discovered, he notifies a repair service, Boh Brothers Construction Company. Further, sections of the parking lot are resurfaced on an annual basis, so that the entire lot is repaved every two years. The Post Office has anywhere between 350 and 400 people on a busy day. There were no complaints prior to the accident of any problems in the parking lot. Lights in the lot go on every day at 5:00 p.m. in the fall, including the area near the Post Office.

Mr. Gene Moody, a professional engineer, was qualified as an expert in the field of accident reconstruction, forensic engineering and safety engineering. He reviewed the Motion for Summary Judgment with its accompanying affidavits; the report of Mr. Gallardo; responses to interrogatories; the Boh Brothers Construction Company file; the deposition of Mrs. Quinn; and photographs of the site. He also visited the site twice. He prepared a scale drawing of the area after taking measurements. The actual hole had been patched by the time Mr. Moody viewed the scene. Using measurements, topographic features, and from the photographs taken by Mr. Quinn, Mr. Moody located the approximate location of the pothole, and the distance from the hole to the concrete barrier posts. He determined that the distance of the hole to the posts was approximately 9 feet. From the handicap ramp to the sidewalk area was about five feet.

According to the witness, Mrs. Quinn may have lost her balance because of her physical condition, as in her deposition she stated that she had pain when she walked. Alternatively, she either tripped over the handicap ramp or lost her balance in the pothole. It is not prudent for a pedestrian to walk across a parking lot without ever looking at the surface. The hole was not unreasonably dangerous for a pedestrian who looks, and she would have seen it with her peripheral vision. Based on the testimony that Mrs. Quinn had no sensation of [328]*328having stepped into a hole, and did not take any further steps after she tripped, but rather fell instantly, it was most likely that she hit the 90 degree edge of the elevated handicap ramp, tripped, and hit the posts. She was traveling in a diagonal direction toward the nail salon, and had she hit the hole with her right foot, as she testified, her momentum would have caused her to fall in the driveway, and she would not have immediately hit the posts. If she hit the post instantaneously, she had to have been close to it. One typically falls in the direction of their momentum.

There was a distinction in coloration at the hole, so at dusk, Mrs. Quinn would have been able to see the hole if she had been looking. He testified that if Mrs. Quinn put her purse in her trunk, then turned and went straight across on a diagonal toward the nail salon, she would certainly have seen the handicap ramp and would have been able to go around it unless she got too close.

Because Mrs.

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Bluebook (online)
862 So. 2d 324, 3 La.App. 5 Cir. 682, 2003 La. App. LEXIS 3375, 2003 WL 22900554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quinn-v-ggs-llc-lactapp-2003.