Scott v. Galleria Operating Co.

230 So. 3d 682
CourtLouisiana Court of Appeal
DecidedNovember 15, 2017
DocketNO. 17-CA-104
StatusPublished
Cited by5 cases

This text of 230 So. 3d 682 (Scott v. Galleria Operating Co.) 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
Scott v. Galleria Operating Co., 230 So. 3d 682 (La. Ct. App. 2017).

Opinion

WINDHORST, J,

h Appellant, Jennifer, Scott, appeals the trial court’s September 7, 2016 judgment granting summary judgment in, favor of appellees,. Galleria Operating Co., LLC (Galleria); Feil Organization, LLC (Feil); Feil Organization Louisiana, LLC (Feil La); Broadwall Management Corporation (Broadwall); Chubb Services Corporation (Chubb); and US, Specialty Insurance Company (US .Specialty), and dismissing appellant’s case with prejudice. For the reasons that follow, we affirm.

Facts and Procedural History

On May 16, 2014, appellant was an employee of Louisiana Singles, Inc., which had offices on the 23rd floor of the Galleria office building (The Galleria) located at 1 Galleria Boulevard in Metairie. When appellant arrived for work, she parked on the second floor of the parking garage adjacent to The Galleria. Appellant was dressed in her usual ■ business attire: blouse and pants, purse on her left shoulder, and shoes with a two inch heel. Appellant exited her vehicle and started walking toward the elevator lobby entrance on the second floor of the parking garage. As appellant was .walking, the heel of her right shoe went into a “hole” that was present in the concrete surface. As a result, she fell,and allegedly sustained injuries to her right shoulder and neck, with scrapes and bruising to her right knee and right forearm.

Appellant filed a petition for damages against appellees contending that she sustained damages as a result of appellees’ negligence in failing to warn of or remedy a hazardous condition in the parking garage.

On February 19,' 2016, appellees filed a motion for summary judgment contending that: (1) the alleged defect did not present an unreasonable risk of harm; and (2) appellees did' not have actual or constructive notice of the alleged defect’ prior to the incident. After a contradictory hearing, the-trial court granted appellees’ | amotion for summary judgment and dismissed appellant’s case with prejudice. This appeal followed. '

Discussion

Appellate courts review the granting of a summary judgment de novo using the same .criteria governing the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547; Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 07/05/94), 639 So.2d 730, 750. Summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. O.C.P. art. 966 A(3).

La. C.C. art. 2317.1 governs negligence claims against the owner or custodian of property. La, C.C. art. 2317.1 provides:

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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Thus, to impose liability for ah unreasonably dangerous defect, a plaintiff must show that: (1) the thing was in the defendant’s custody or control, (2) the thing had a vice or defect that presented an unreasonable risk of harm, (3) the defendant knew or should have known of the unreasonable risk of harm, and (4) the damage was caused by the defect. Vail v. Schiro Bros. Shoe Store, Inc., 16-47 (La. App. 5 Cir. 05/12/16), 193 So.3d 342, 347; Wiltz v. Floor & Decor Outlets of Am., 15-516 (La. App. 5 Cir. 02/24/16), 186 So.3d 1204, 1208. If the plaintiff fails to prove any one of these elements, the claim fails. Dauzat v. Thompson Const. Co., Inc., 02-989 (La. App. 5 Cir. 01/28/03), 839 So.2d 319, 322.

| ¡^Constructive knowledge imposes a reasonable duty to discover apparent defects under the defendant’s custody. Luquette v. Great Lakes Reinsurance (UK) PLC, 16-422 (La. App. 5 Cir. 12/21/16), 209 So.3d 342, 348. Constructive knowledge can be found if the conditions that caused the injury existed for such a period of time that those responsible, by exercise of .ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Boutin v. Roman Catholic Church of the Diocese of Baton Rouge, 14-0313 (La. App. 5 Cir. 10/29/14), 164 So.3d 243, 246.

On appeal, appellant contends that the trial court erred in granting appellees’ motion for summary judgment. Appellant claims that the trial court erred in finding that (1) appellees did not have a duty to know, in the exercise of reasonable care, of defects in the premises which presented an unreasonable risk of harm to others; (2) there were no genuine issues of material fact with regard to the nature of the defects and hazardous conditions present in appellees’ premises; and (3) appellees did not have actual or constructive notice of the defects and hazardous conditions present in - its premises. Because we find that appellees established that appellant could not show that appellees had actual or constructive notice of the alleged defect or hazardous condition, we pretermit appellant’s arguments regarding appellees’ duty, whether a defect existed, and if a defect.existed, whether'the defect created an unreasonable risk of harm.1

In support of the motion for summary judgment, appellees attached the affidavit of The Galleria’s administrative assistant, Steven A, Wesselman, appellant’s deposition, and appellant’s answers to interrogatories.

In his affidavit, Mr. Wesselman stated that “Security officers and engineers personally walk through and inspect the property ah average of three (3) times a |4day.” The inspection included a general inspection to identify potential hazards. He also stated that the parking garage has a parking Capacity for 1,964 vehicles and is approximately 675,881 square feet. Mr. Wesselmán stated that prior to appellant’s accident, The Galleria (1) had no prior knowledge ór notice of an alleged defect in the area where appellant claimed she fell; (2) did not receive any reports of an alleged defect in the area where appellant claimed she fell; (3) did not have any employees that created the alleged hazard; (4) has employees whose primary responsibility is to patrol the property to report and correct hazards, and perform miscellaneous general security and maintenance duties; (5) commissions regular inspections, maintenance, and necessary repairs to the premises throughout The Galleria property, including the parking garage; (6) has several trained security officers who are on the property at any given time, roaming the common areas, including the parking garage, and reporting any problem areas which come to their attention; (7) has no records of incidents, defects, or repairs in the area of appellant’s alleged fall for six months prior to this incident; (8) did not receive any reports of an alleged defect in the area where appellant allegedly fell; and (9) has not had any similar incidents reported regarding the area appellant allegedly fell since this incident.

In her deposition, appellant testified that she had parked on the second floor, in the area where the accident occurred, more than once or twice.

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230 So. 3d 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-galleria-operating-co-lactapp-2017.