Sepulvado v. Travelers Ins. - the Charter Oak Fire Ins. Co.

261 So. 3d 980
CourtLouisiana Court of Appeal
DecidedNovember 8, 2018
DocketNo. 52,415-CA
StatusPublished

This text of 261 So. 3d 980 (Sepulvado v. Travelers Ins. - the Charter Oak Fire Ins. 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
Sepulvado v. Travelers Ins. - the Charter Oak Fire Ins. Co., 261 So. 3d 980 (La. Ct. App. 2018).

Opinion

COX, J.

Joseph Sepulvado and Christy Sepulvado ("Mr. and Mrs. Sepulvado," respectively) brought a personal injury suit against The Charter Oak Fire Insurance Company and Yokem Motors, Incorporated1 (collectively referred to as "Yokem") in the First Judicial District Court, Caddo Parish, Louisiana. The district court granted Yokem's motion for summary judgment. The Sepulvados now appeal. For the following reasons, we affirm the district court's judgment.

FACTS

Mr. Sepulvado was injured while exiting his vehicle at Yokem, a car dealership in Shreveport, Louisiana. On February 24, 2015, Mr. Sepulvado drove his 2007 GMC truck from DeSoto Parish to Shreveport. Mr. Sepulvado was going to meet with a Geico employee to get a repair estimate for the tailgate of his truck. At the time, Geico was renting a building on the Yokem premises.2 Mr. Sepulvado was accompanied by Mrs. Sepulvado and their son, Aaron. Aaron's school was closed that day due to icy weather conditions.

While driving on the lot, Mr. Sepulvado was directed where to park by a Yokem employee. Mr. Sepulvado claims a Yokem employee by the name of Paul motioned for him to get out of his truck to meet him. Mr. Sepulvado claims that upon exiting his truck, he took three steps, his feet slid out from underneath him, and he fell on a thin layer of ice, injuring his back and head. Mrs. Sepulvado took Mr. Sepulvado to the emergency room at Christus Schumpert Highland Hospital. While waiting in the emergency room, Mr. Sepulvado claims he talked to two Yokem employees who slipped on the same patch of ice earlier in the morning.

In his deposition, Mr. Sepulvado stated the weather was bad and icy on the day of *982the accident. He recalled seeing spots of ice on the side of the road while he was on his way to Geico that morning. When asked if there was any ice on the road, Mr. Sepulvado answered, "Probably. I can't really remember. Probably." He said he was the only car in the parking lot where he fell. He stated he did not see ice on the pavement until after he fell, when the people running to help him were sliding around. Mr. Sepulvado said that he did not see any ice on the ground where he fell. He assumed that ice caused him to fall because of the way his feet slid from underneath him. He further stated that his wife did not fall while checking on him and his truck did not slide while he was driving it on the lot.

Mrs. Sepulvado confirmed Mr. Sepulvado's recollection of the truck not sliding around on the lot. She also stated that she did not see any ice while assisting her husband after the fall. At the time she was running around the truck to check on Mr. Sepulvado, she did not know he fell because of ice.

Paul Bentzler was a Yokem employee who was working the morning of the accident. Mr. Bentzler stated he arrived to work at 6:30 a.m. and the back lot, where the employees park, was pretty much solid ice and "pretty slick." He said he saw Mr. Sepulvado pull up and park his truck, but he did not see Mr. Sepulvado fall. He only saw Mr. Sepulvado lying beside his truck. Mr. Bentzler stated that he helped Mr. Sepulvado get back on this feet because "it was slick." He also stated that Mr. Sepulvado drove straight to the Geico building after the fall and was there for about 30 minutes before leaving. Mr. Bentzler heard later that day that another employee had fallen in the back lot, but he did not see the fall.

On February 23, 2016, Mr. Sepulvado petitioned for both general and special damages, including past and future medical expenses; past, present, and future pain and suffering; and, past, present, and future mental anguish and distress. Ms. Sepulvado petitioned for damages for loss of consortium, services, and society.

Yokem and its insurer, The Charter Oak Fire Insurance Company, filed a motion for summary judgment because the Sepulvados could not meet their burden of proof as to the existence of an "unreasonable risk of harm." The district court granted Yokem's motion for summary judgment and stated the following:

[Mr. Sepulvado] knew that the weather was bad that day. On his way from his home to the location, he saw ice on the side of the road. [H]e testified to knowing that there were icy conditions and bad weather conditions.
* * *
So the plaintiff was certainly on notice, it was open and obvious that the conditions were bad, and that's the reason why school was closed[.] Everyone was on notice that the conditions were very dangerous, not only to drive, but also to walk in.
* * *
Even if he didn't see the specific patch of ice that he might have slipped and fell on, it's unclear from his testimony whether he actually slipped and fell. But be that as it is, he was certainly on notice that it was a dangerous situation, and he chose to travel on that day nonetheless.

The Sepulvados have appealed the district court's judgment.

DISCUSSION

The Sepulvados' sole assignment of error is that the district court erred in granting the motion for summary judgment in favor of Yokem. The Sepulvados argue *983that a plaintiff's awareness alone does not justify a finding that the hazard was "open and obvious." They contend that although Mr. Sepulvado was aware of the icy conditions, Yokem had not taken any steps to abate the icy conditions in their parking lot. The Sepulvados request that this Court vacate the judgment of the district court and deny the motion for summary judgment.

A de novo standard of review is required when an appellate court considers rulings on motions for summary judgment, and the appellate court uses the same criteria that governed the district court's determination of whether summary judgment was appropriate. J & L Oil Co. v. KM Oil Co., LLC , 51,898 (La. App. 2 Cir. 2/28/18), 247 So.3d 147, 154. A court must grant a motion for summary judgment if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

In addition to other elements, a plaintiff filing a claim against a merchant must prove the condition presented an unreasonable risk of harm and that the risk of harm was reasonably foreseeable. La. R.S. 9:2800.6. While merchants must exercise reasonable care to protect their patrons and keep their premises safe from unreasonable risks of harm, they are not insurers of their patrons' safety and are not liable every time an accident happens. 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. A merchant generally does not have a duty to protect against an open and obvious hazard. Cox v. Baker Distrib. Co., L.L.C. , 51,587 (La. App. 2 Cir. 9/27/17), 244 So.3d 681,

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Related

Ton v. Albertson's, LLC
182 So. 3d 246 (Louisiana Court of Appeal, 2015)
Cox v. Baker Distrib. Co.
244 So. 3d 681 (Louisiana Court of Appeal, 2017)
J & L Oil Co. v. KM Oil Co.
247 So. 3d 147 (Louisiana Court of Appeal, 2018)

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Bluebook (online)
261 So. 3d 980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sepulvado-v-travelers-ins-the-charter-oak-fire-ins-co-lactapp-2018.