Opinion
22-CA-362
06-07-2023
CARLA HOLLINS v. TOURNAMENT PLAYERS CLUB OF LOUISIANA, INCORPORATED, THE TRAVELERS INDEMNITY COMPANY, LUKE FARABAUGH, AND BRANDON REESE
COUNSEL FOR PLAINTIFF/APPELLANT, CARLA HOLLINS Stephen M. Smith COUNSEL FOR DEFENDANT/APPELLEE, TOURNAMENT PLAYERS CLUB OF LOUISIANA, INCORPORATED AND TRAVELERS INDEMNITY COMPANY Stephanie McLaughlin
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 811-844, DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, CARLA HOLLINS Stephen M. Smith
COUNSEL FOR DEFENDANT/APPELLEE, TOURNAMENT PLAYERS CLUB OF LOUISIANA, INCORPORATED AND TRAVELERS INDEMNITY COMPANY Stephanie McLaughlin
Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
STEPHEN J. WINDHORST, JUDGE
Appellant/plaintiff, Carla Hollins, appeals the trial court's May 17, 2022 judgment, granting summary judgment in favor of appellees/defendants, Tournament Players Club of Louisiana, Inc. ("TPC") and Travelers Indemnity Company ("Travelers"), dismissing appellant's claims against defendants with prejudice. For the reasons stated herein, we affirm.
Pursuant to La. C.C.P. art. 1918, we ordered, and the judgment was amended to contain proper decretal language to constitute a valid final judgment. An amended judgment was signed and submitted on February 3, 2022.
PROCEDURAL HISTORY and EVIDENCE
On November 5, 2020, plaintiff filed a petition for damages against TPC and its insurer, Travelers, alleging that on November 6, 2019, she was an invited guest of TPC located at 11001 Lapalco Boulevard in Avondale, when she fell on "broken, loose cobblestone and curbing" in the parking lot. She alleged that TPC parking lot was "not properly illuminated" and "the broken, loose hazardous condition" was not properly cordoned or otherwise marked. Plaintiff stated that at the time of her fall, the parking lot did not contain any warning signs regarding the "broken, loose curb and cobblestone." She contended that TPC was aware of the hazardous and dangerous condition which existed in the parking lot and that their guests could not see the condition at "dusk and/or night." She averred that despite TPC's knowledge of the "broken, loose curb and cobblestone condition," it failed to remedy the situation. As a result of her fall, she sustained injuries.
Defendants filed an answer to plaintiff's petition, denying the allegations contained therein. On March 30, 2022, defendants filed a motion for summary judgment, arguing that defendants were unaware of any defect in the parking lot. In support their motion for summary judgment, defendants attached plaintiff's deposition. Based on plaintiff's deposition, defendants asserted that plaintiff cannot establish her burden of proof in this case because she is unable to describe any alleged defective condition in the parking lot that caused her damage and was unable to describe how or why she fell in the parking lot.
According to her deposition, plaintiff attended a private golf tournament with her friend, Angela Dortch, at TPC and parked in TPC's parking lot on the day of the incident. After the two finished 18 holes of golf, they went to the golf shop. Plaintiff left the golf shop and traversed the parking lot to her car to retrieve her wallet. Plaintiff testified that on her way back to the golf shop with her wallet, "it was difficult to see, and the ground was cobblestone," and she fell and twisted her left foot, landing on her right knee. When asked if she twisted her foot on cobblestone, plaintiff responded "I don't recall." During her deposition, plaintiff was shown a photograph of TPC's parking lot which she had taken and produced to defendants in discovery. When defense counsel inquired if the photograph depicted the area that she fell, plaintiff responded "I don't recall." Plaintiff testified that she could not state exactly where she fell.
Defendants asserted that the absence of an unreasonably dangerous condition implies the absence of a duty on the part of defendants. Defendants argued that the mere fact that someone falls in a parking lot does not make the parking lot's condition an unreasonable risk of harm. Defendants contended that plaintiff should have exercised a reasonable degree of caution for her own safety. Defendants averred that they did not owe plaintiff any duty because of the obvious and apparent condition of the parking lot. Defendants asserted that because plaintiff will be unable to prove an unreasonable risk of harm at trial, no genuine issues of material fact exist and thus, they are entitled to judgment as a matter of law.
Plaintiff filed an opposition contending that she described a defective condition. In her petition for damages she alleged that the parking area where she fell was not properly illuminated. She stated that in her deposition that she was told by employees of TPC's golf shop that "there was no lighting [in the parking lot] because of the construction." She also testified in her deposition that she fell because of the parking lot's uneven surface. She stated that she did not have any trouble walking on the uneven surface earlier in the day when she was able to see. She testified that the inability to see where she was going may have contributed to her fall. Additionally, in her answers to interrogatories and her deposition, she stated that she fell because it was dark, there was no lighting in the parking lot, and that the surface of the parking lot was uneven and/or she fell from stepping into a drop off, hole, or dip. Plaintiff asserted that she identified Ms. Dortch as the person who took pictures of the scene and who helped her after the fall. Plaintiff further asserted that the parking lot condition was not open and obvious due to a lack of lighting. She argued that when she fell, she had not anticipated having to walk in the dark and she could not see to avoid the condition which caused her to fall.
Plaintiff argued that genuine issues of material fact existed concerning "the conditions in the parking lot such as the lack of lights at night and the uneven surface which could not be safely negotiated due to the lack of light and possibly a hole or other hazard," which "have not been refuted" by defendants." She contended that these "possible and probable defects" led to her falling and injuring herself, and therefore the motion for summary judgment should be denied. In support of her opposition, plaintiff submitted her petition for damages and answers to interrogatories.
After an evidentiary hearing, the trial court granted defendants' motion for summary judgment, dismissing plaintiff's claims with prejudice. This appeal followed.
DISCUSSION
On appeal, plaintiff contends that the trial court erred in granting defendants' motion for summary judgment. Plaintiff argues that to succeed on a motion for summary judgment, defendants had to demonstrate the absence of any factual dispute as to whether the unlit, uneven cobblestoned pathway/parking lot posed an unreasonably dangerous risk to all individuals traversing the parking lot at night. Plaintiff claims that defendants have maintained that the darkness itself was an open and obvious condition for which defendants owed plaintiff no duty to protect against. Plaintiff argues that whether a condition poses an unreasonable risk is a highly factual determination that requires the weighing and balancing of the unreasonable risk of harm criteria under the unique set of fact and circumstances of the particular case. Therefore, she asserts that whether the unlit, uneven cobblestoned parking lot posed an unreasonable risk of harm to all individuals traversing it at night is a genuine issue of material fact that must be decided by a jury. Because a jury could find that the unlit, uneven parking lot was unreasonably dangerous, plaintiff contends that defendants did not carry their burden on the motion for summary judgment and thus, the burden did not shift to plaintiff. Accordingly, plaintiff contends that the trial court erred in granting the motion for summary judgment.
A motion for summary judgment must be granted 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 A(3). Appellate courts review a judgment granting a motion for summary judgment de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Taylor v. Chipotle Mexican Grill, Inc., 18-238 (La.App. 5 Cir. 12/27/18), 263 So.3d 910, 913, writ denied, 19-154 (La. 04/08/19), 267 So.3d 606.
The initial burden is on the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966 D(1). If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The nonmoving party must then produce factual support to establish that she will be able to satisfy her evidentiary burden of proof at trial. Id. If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Hester v. Walker, 20-1278 (La. 05/13/21), 320 So.3d 362, 366.
Plaintiff's claim is governed by La. C.C. art. 2317.1, premises liability, which 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, in a premises liability claim, the plaintiff must prove that the thing was in the defendant's custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage, and that the defendant knew or should have known of the defect. Taylor, 263 So.3d at 914.
In considering whether a condition is unreasonably dangerous, courts apply a risk-utility balancing test, including the following 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 plaintiff's activities in terms of societal utility or whether the activities were dangerous by nature. Bufkin v. Felipe's Louisiana, LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856; Broussard v. State ex re. Office of State Buildings, 12-1238 (La. 04/05/13), 113 So.3d 175, 184.
The second prong of the risk-utility inquiry focuses on whether the dangerous or defective condition is obvious and apparent. Broussard, 113 So.3d at 184. Generally, a defendant generally does not have a duty to protect against that which is obvious and apparent. Bufkin, 171 So.3d at 856. In order for a hazard to be considered obvious and apparent, the hazard should be one that is open and obvious to everyone who may potentially encounter it. Id.; Broussard, 113 So.3d at 184; Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La. 02/20/04), 866 So.2d 228, 234. If the facts of a particular case show that the condition complained of should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Eisenhardt v. Snook, 08-1287 (La. 03/17/09), 8 So.3d 541; Dauzat v. Curnest Guillot Logging Inc., 08-528 (La. 12/2/08), 995 So.2d 1184, 1186 (per curiam).
In a trip and fall case, the duty is not solely with the landowner. Hutchinson, 866 So.2d at 235. An accident alone does not support the imposition of liability, particularly considering the normal hazards pedestrians face while traversing sidewalks and parking lots in this state. Williams v. Leonard Chabert Medical Center, 98-1029 (La.App. 1 Cir. 09/26/99), 744 So.2d 206, 211, writ denied, 00-11 (La. 2/18/00), 754 So.2d 974. It is common for surfaces of streets, sidewalks, and parking lots to be irregular. Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 03/04/98), 708 So.2d 362, 363. It is not the duty of the party having garde of the same to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs. Id. These surfaces are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet. Rather, a party may only be held liable for those defects which present an unreasonable risk of harm. Id.
Just as an assertion that a surface was "uneven" does not alone create an unreasonably dangerous condition, the mere characterization of the surface as "cobblestone" does itself describe an unreasonably dangerous condition. Modern cobblestone surfaces may be smooth and even, and may be made of small pebbles resulting in a safe smooth surface. Plaintiff claimed to have a picture or pictures of the surface, but they were not attached or admitted into evidence, even after the trial judge's inquiry about them during the hearing.
Whether the plaintiff or her friend, Angela Dortch, took the alleged picture(s) is uncertain in the deposition.
A pedestrian has a duty to see what should be seen and is bound to observe whether the pathway is clear. Hutchinson, 866 So.2d at 235. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. Id. A landowner is not liable for an injury caused by a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner. Id.; Handy v. City of Kenner, 12-135 (La.App. 5 Cir. 06/28/12), 97 So.3d 539, 542.
Summary judgment is not precluded in cases where the plaintiff is unable to produce factual support for his claim that a complained of condition is unreasonably dangerous. Ludlow v. Crescent City Connection Marine Division, 15-1808 (La. 11/16/15), 184 So.3d 21; Allen v. Lockwood, 14-1724 (La. 02/13/15), 156 So.3d 650, 652; Rodriguez v. Dolgencorp, LLC, 14-1725 (La. 11/14/14), 152 So.3d 871, 872 (per curiam).
Upon review of her deposition, plaintiff could not recall, did not know, or could not remember critical details regarding her fall allegedly due to the unreasonably dangerous condition of TPC parking lot. In her deposition, plaintiff testified that on November 6, 2019, she was an invited guest at TPC and played in a private golf tournament with her friend, Ms. Dortch. Plaintiff and Ms. Dortch drove to the tournament in Ms. Dortch's vehicle and they parked in TPC's parking lot. Upon arrival, she did not have any problems traversing the parking lot, nor did she see any construction in the parking lot. Two groups played in the tournament - one in the morning and one in the afternoon. The morning group ran behind and the afternoon group started later than scheduled and "ended late." Plaintiff testified that she did not recall the time she arrived at TPC, but it was in the afternoon. She and Ms. Dortch played in the afternoon group and she completed 18 holes of golf. Plaintiff could not recall what time she finished playing her round.
After she completed her round of golf, plaintiff went to TPC's golf shop. After an indeterminate amount of time of browsing, plaintiff traversed the parking lot without incident to retrieve her wallet from the car because she wanted to purchase some items from the golf shop. Plaintiff did not allege that it was "dusk" or "dark" on the way to the car, nor did she state that she needed a flashlight or a camera phone light to traverse the parking lot to get to the car. On her way back to the golf shop, plaintiff stated that "it was difficult to see, the ground was cobblestone," and she fell when she twisted her left foot. Plaintiff testified that she did not recall if she twisted her foot on cobblestone. She stated that when she fell, she was on an "uneven surface." Plaintiff also could not recall (1) if there was a "hole or anything like that;" (2) how much time had passed between completion of her round of golf, browsing in the golf shop, and her fall in the parking lot; or (3) how far Ms. Dortch's vehicle was parked from the entrance to the golf shop. Plaintiff testified that she did not see the alleged hazard that caused her fall and no one witnessed her fall. After her fall, plaintiff testified that Ms. Dortch and "some of the golf pros or people from TPC" helped her up and carried her to the clubhouse where she received first aid. Plaintiff testified that when the employees came to help her, they "had trouble seeing" and "I think someone had to go back in and get a flashlight." She stated that "they" were using "camera phones for lighting." Plaintiff testified that she could not "see the construction," but she believed it was at this point that the employees told her that "there was no lighting because of the construction" and "that was the reason it was dark" in the parking lot.
Plaintiff testified that she did not "know what hazard. It's the ground."
When asked if she saw any signs of construction at TPC before it got dark, plaintiff stated that "there were some backhoes and dirt moved around on the actual course, but that was not uncommon on a golf course." Plaintiff did not testify or provide evidence that there was construction in the parking lot where she fell due to an alleged dangerous condition.
Plaintiff did not provide any evidence from Ms. Dortch or any TPC employee in opposition to the motion.
Once in the clubhouse, the employees bandaged her up and her knee and foot were "iced and elevated." Plaintiff stated that one of the employees wrote a report that evening. However, she could not recall if an employee went over the report with her or whether she looked at it and signed a report. She stated that she knew a report was completed because they told her "[w]e are doing a report" and she saw them "writing it." Plaintiff did not know how many employees helped her and she did not know how long she stayed in the clubhouse after receiving first aid care from the employees.
Plaintiff did not provide a copy of this alleged report in opposition to the motion.
After an indeterminate amount of time, plaintiff testified that she "probably would be okay," and decided to leave. She stated that the employees brought her to her car. Prior to leaving, while sitting in the car, plaintiff testified that she took a photograph of the parking lot and produced it to defendants in discovery. During her deposition, plaintiff was shown the photograph of the parking lot and she verified that she took the picture while sitting in her car before she left TPC. She testified that she was trying to show how dark the parking lot was when she fell. When asked if the photograph depicted the area she fell, plaintiff testified that she could not recall. Plaintiff testified that she could not state exactly where she fell.
Although this photograph was discussed during plaintiff's deposition, it was not offered or admitted as evidence in the motion for summary judgment, opposition, or at the hearing.
Upon our de novo review of the record and the facts of this case, we find that no genuine issues of material fact exist and defendants are entitled to summary judgment as a matter of law. Here, based on plaintiff's deposition testimony, the defendants pointed out an absence of factual support for an essential element of plaintiff's claim, i.e., whether the condition of the parking lot was unreasonably dangerous. Once the burden shifted, plaintiff failed to submit any factual support to establish that she could satisfy her evidentiary burden of proof at trial other than her vague deposition testimony. Specifically, plaintiff failed to submit any evidence or expert testimony to show that the alleged uneven surface of the parking lot, and/or the alleged uneven surface of the parking lot combined with an alleged lack of lighting, was unreasonably dangerous. Plaintiff also failed to submit a copy of the report written by TPC employees, if one in fact exists, and/or the photograph of the parking lot she took before she left TPC. Accordingly, we find the trial court did not err granting defendants' motion for summary judgment.
DECREE
For the reasons stated herein, we affirm the trial court's judgment granting summary judgment in favor of defendants and against plaintiff, dismissing plaintiff's claims with prejudice.
AFFIRMED
SJW
RAC
DISSENTS WITH REASONS
MEJ
JOHNSON, J., DISSENTS WITH REASONS
I, respectfully, dissent from the majority opinion and would reverse the summary judgment in favor of Defendants, Tournament Players Club of Louisiana, Inc. ("TPC") and Travelers Indemnity Company ("Travelers"). I find that Plaintiff, Carla Hollins, presented sufficient evidence to show there is a genuine issue of material fact remaining as to whether Defendants' parking lot posed an unreasonable risk of harm.
The majority opinion finds that, based on Ms. Hollins' deposition testimony, there is an absence of factual support for an essential element of her claim. It also finds that she failed to submit any factual support to establish that Ms. Hollins could satisfy her evidentiary burden of proof at trial.
In her deposition, Ms. Hollins testified, "I walked to the car to get my wallet; and I got my wallet, and on my way back, it was very difficult to see, and the ground was cobblestone, and I fell. I twisted my left foot, landing on my right knee." When referencing a picture she had taken at the time of the alleged incident, Ms. Hollins stated, "I was in the car, and I was trying to see how dark it was out there, to show her how dark it was." She further described that, when employees came to assist her after the alleged fall,
No pictures were submitted by Ms. Hollins for summary judgment purposes.
The -- The one think I want to make sure that I point out is, when they came out, they, themselves, had trouble seeing, and I think someone had to go back in and get a flashlight.
They were all using camera phones for lighting, and they were all complaining about the lighting in the parking lot. They were saying that -- I believe that's when they were saying that, as a result of the construction or-- that was the reason it was dark out there.
In her answers to Defendants' interrogatories, Ms. Hollins described her version of the alleged incident by stating:
Ms. Hollins attached her answers to Defendants' interrogatories to her opposition to the motion for summary judgment. Pursuant to La. C.C.P. art. 966, "[t]he only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." (Emphasis added). Ms. Hollins' answers to the interrogatories were not excluded from evidence by the trial court; thus, those answers are properly considered in this summary judgment review.
On said date, I was attending a professional golf tournament. When we finished playing, it was dark, pitch black dark. The golf tournament venue was under construction and due, I assume, to renovations there were no lights in the parking lot[.] I was walking to the car and it was extremely dark, while walking on cobblestone in the parking lot[,] I step [sic] in some sort of drop off or, dip or hole[,] and my left ankle turned and I fell and landed on my right knee. I called Angela Dortch form my cell phone, she and the staff from the golf shop came out to assist but could not see, so they went back into [sic] facility and got flashlights/cellphone lights. They picked me up off the ground and carried me to [sic] clubhouse where they rendered first aid and completed an incident report.
Summary judgment shall be granted "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." Jefferson Parish School Board v. TimBrian, LLC, 21-67, p. 3 (La.App. 5 Cir. 10/20/21), ___ So.3d ___, 2021WL4891089, writ denied, 21-1725 (La. 1/12/22), 330 So.3d 629, quoting, La. C.C.P. art. 966(A)(3); Stogner v. Ochsner Clinic Foundation, 18-96 (La.App. 5 Cir. 9/19/18), 254 So.3d 1254, 1257. When examining factual issues, courts may not consider the merits of the case, make credibility determination, evaluate testimony, or weigh evidence. Stogner v. Ochsner Clinic Foundation, 18-96 (La.App. 5 Cir. 9/19/18), 254 So.3d 1254, 1257, citing Hines v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam).
In the case at bar, Ms. Hollins alleges that the trial court erred in granting Defendants' summary judgment because the issue of whether the unlit, uneven cobblestoned parking lot posed an unreasonable risk of harm to all who traversed the parking lot remains. Defendants argue that they cannot be held liable for Ms. Hollins' damages because there existed a condition on the day of the alleged incident that should have been observed by her-the darkness-in the exercise of reasonable care, and she should have exercised a reasonable degree of caution for her own safety.
After review, I agree with Ms. Hollins and find that there is a genuine issue of material fact remaining as to whether Defendants' parking lot posed an unreasonable risk of harm. Ms. Hollins' deposition and answers to Defendants' interrogatories were the only exhibits presented for summary judgment purposes, and they were uncontroverted by Defendants. Thus, the only exhibits presented show that Defendants' cobblestoned parking lot was unlit on the night of the alleged incident. At this point, reasonable persons can disagree as to whether the unlit, cobblestoned parking lot had an unreasonably dangerous or defective condition that was obvious and apparent.
Accordingly, I would reverse the summary judgment in favor of Defendants and remand the matter for further proceedings.
SUSAN M. CHEHARDY CHIEF JUDGE FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON STEPHEN J. WINDHORST JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM JUDGES
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JUNE 7, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
CURTIS B. PURSELL
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U.SCHLEGEL (DISTRICT JUDGE)
STEPHEN M. SMITH (APPELLANT)
STEPHANIE MCLAUGHLIN (APPELLEE)
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