Trahan v. Acadiana Mall of Delaware

149 So. 3d 359, 14 La.App. 3 Cir. 232, 2014 La. App. LEXIS 2348, 2014 WL 4851766
CourtLouisiana Court of Appeal
DecidedOctober 1, 2014
DocketNo. 14-232
StatusPublished
Cited by4 cases

This text of 149 So. 3d 359 (Trahan v. Acadiana Mall of Delaware) 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
Trahan v. Acadiana Mall of Delaware, 149 So. 3d 359, 14 La.App. 3 Cir. 232, 2014 La. App. LEXIS 2348, 2014 WL 4851766 (La. Ct. App. 2014).

Opinions

PETERS, J.

hThe plaintiff, Wilson J. Trahan, appeals a trial court judgment granting an involuntary dismissal of his suit for damages against the defendants, Acadiana • Mall CMBS, LLC; ERMC III Property Management Company, LLC; and ERMC II, LP. For the following reasons, we reverse the trial court judgment and remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

This litigation arises from a July 21, 2010 accident which occurred at the Acadi-ana Mall shopping center in Lafayette, [361]*361Louisiana. While attempting to enter the mall, Mr. Trahan fell and sustained a closed fracture of his right fíbula. He brought suit against the named defendants as the owners and/or operators of the mall facility (hereinafter collectively referred to as “Acadiana Mall”) seeking to recover damages for his injuries. The matter proceeded to a trial on the merits, and, after Mr. Trahan rested his case, Acadiana Mall moved for an involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B). The trial court granted the motion and, after a written judgment was signed dismissing Mr. Trahan’s claims, he perfected this appeal.

Mr. Trahan testified at trial that he arrived at the mall at approximately 9:30 a.m. on July 21, 2018, intending to walk inside the mall premises for exercise. Because the outside temperature was already approaching ninety degrees Fahrenheit, he parked his vehicle in a shady area and proceeded on foot across the parking lot and roadway that ran adjacent to the mall structure. He stepped onto the sidewalk,1 which lies adjacent to the mall building and extends around the mall perimeter, and began walking toward the mall entrance. To reach the mall entrance from where he stepped onto the sidewalk, Mr. Trahan was required to 12cross an entrance to one of the mall’s service areas,2 and, as he approached this crossing, he noticed that a large accumulation of surface water blocked his path.

In order to avoid the accumulation, Mr. Trahan moved to his right and up against the wall forming the sidewalk’s inner boundary. He did so because he observed an eighteen to twenty-four inch surface area on the service road which appeared to be dry. He testified that he placed his right hand on the bollard3 located at the entrance of the service area and stepped down onto the apparently dry surface. However, when he stepped down he encountered a buildup of algae on the surface and this substance caused him to slip and fall. Mr. Trahan then got to his feet, walked into the mall, and requested a mall employee to contact mall security.

Joseph Thibodeaux, an Acadiana Mall security guard, responded to the call and inspected the scene of the accident with Mr. Trahan. When Mr. Trahan pointed out the place where he slipped, Mr. Thibo-deaux observed some slip marks in the surface algae. He also noted that Mr. Trahan’s pants were somewhat wet, but did not note any visible injury.4

When Mr. Trahan more closely examined the reason for the accumulation of surface water, he noted that the drain through which the water should have flowed was clogged by algae, leaves, and cigarette butts and that neither the water nor the impedimenta were flowing through the drain. He testified that he then gave Mr. Thibodeaux his name and telephone number and took three pictures of the area. |aHe declined Mr. Thibodeaux’s offer to call an ambulance and left the mall. According to Mr. Trahan, approximately twenty minutes elapsed between the time [362]*362the accident occurred and the time he left the mall.

Mr. Thibodeaux testified that as part of his security duties, he performs daily inspections of the mail’s perimeter from a golf cart and that the service entrance where Mr. Trahan fell contains trash compactors and water sprinklers that require daily inspection. That particular service area has two entrances and, although Mr. Thibodeaux could access the area to make his inspection from either entrance, he' normally did not use the entrance where Mr. Trahan fell because the other entrance was closer to the trash compactor. Mr. Thibodeaux testified that because he worked a 7:00 a.m. to 3:00 p.m. shift, he would have already inspected the area pri- or to Mr. Trahan’s accident on the morning of July 21, 2010. He acknowledged that the surface water Mr. Trahan attempted to avoid was located within the pedestrian walkway and that the walkway would have been rendered unsafe by the presence of a slippery surface. He described the accumulation as being comprised of water “and everything that you can imagine that wheels and rubber rolls on[J”

Charlie Pritchett, Acadiana Mall’s Director of Operations for twenty-two years, testified that he oversees interior and exterior maintenance, janitorial services, and security services at the mall, and acknowledged that the location where Mr. Trahan fell was within Acadiana Mali’s control and responsibility. He learned of Mr. Tra-han’s fall from Mr. Thibodeaux, visited the scene that same morning, took photographs, and prepared an accident report. He did not recall seeing any physical evidence of Mr. Trahan’s fall at the scene, but did circle the area on the photographs as pointed out to him by Mr. Thibodeaux.

^Although he testified that he did not inspect the drain causing the surface water accumulation, he did recall that “water was receding to [the] drain” at the time of his inspection. However, when questioned specifically whether the drain was flowing, Mr. Pritchett said he did not know if it was flowing.

According to Mr. Pritchett, Acadiana Mall had no written policy/procedure for inspecting its exterior premises, but crews cleaned the parking lots daily, checking for trash, debris, and safety hazards. He testified that had a cleaning crew member observed algae at the edge of a puddle, the employee would have generated a report and forwarded it to him. As of the time of this accident, Mr. Pritchett had received no such report. On the one hand, Mr. Pritchett testified that Acadiana Mall employees do not perform maintenance on storm drains because they are simply openings through which water flows to an evacuation ditch, and, on the other hand, he acknowledged that in a situation where water is not flowing into the drain, it would be the mall employees’ responsibility to unclog the drain.

With regard to the accident report, Mr. Pritchett testified that he and Mr. Thibo-deaux completed it, but he could not recall when it had been completed. He further acknowledged that all the entries concerning the accident itself were based on information provided by Mr. Thibodeaux.5 Mr. Pritchett agreed that the surface water in the area where Mr. Trahan fell was located within a pedestrian walkway, and he further agreed that the materials forming the edge of surface water can be slippery and that the presence of a slippery sub[363]*363stance within a pedestrian walkway can render the walkway unsafe.

All of the photographs introduced into evidence reflect that the service driveway contained an accumulation of surface water extending around the outer |sedge of the sidewalk into the roadway that ran parallel to the mall building and back into the service road to a point approximately one and one-half to two feet from the point where the sidewalk and the mall building meet. However, in that one-and-one-half-foot to two-foot area, the photographs reflect no standing water, and, in fact, appears to show that the surface is dry.

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Bluebook (online)
149 So. 3d 359, 14 La.App. 3 Cir. 232, 2014 La. App. LEXIS 2348, 2014 WL 4851766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trahan-v-acadiana-mall-of-delaware-lactapp-2014.