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HARRIS RAINEY v. MELINDA KNIGHT, DVM d/b/a BAYOU CANE VETERINARY HOSPITAL
In this case, the plaintiff appeals the trial court's grant of summary judgment in favor of the defendants, dismissing the plaintiff's case with prejudice. For the following reasons, we affirm the trial court's summary judgment and deny the defendants' motion for sanctions filed in this court.
FACTS AND PROCEDURAL HISTORY
On May 31, 2016, Harris Rainey visited Bayou Cane Veterinary Hospital in Houma, Louisiana, a place he had frequented many times over approximately twenty years. He entered the building without incident. As he was leaving, Mr. Rainey intended to descend the four steps from the elevated porch to the ground below, but instead stepped off of the porch and fell to the ground. Subsequently, Mr. Rainey filed a Petition for Damages against the owners of the property, Thomas A. Richard and Jerylyn F. Richard, and Melinda Knight, DVM d/b/a Bayou Cane Veterinary Hospital (the defendants), asserting that he suffered significant injuries caused by the defendants' failure to maintain the property. Specifically, Mr. Rainey alleged that the elevated porch had no railing on the right side of the porch where he fell, although the left side of the porch had a railing, and that the lack of a complete railing created a defect on the premises.1
Thereafter, the defendants filed a motion for summary judgment, asserting that there was no genuine issue of material fact that the front porch ledge was open and obvious. The defendants also contended that Mr. Rainey could not show that the defendants had actual or constructive knowledge of an allegedly dangerous condition. Mr. Rainey opposed the motion.
After a hearing, the trial court signed a judgment on March 10, 2023, granting summary judgment in favor of the defendants and dismissing Mr. Rainey's petition with prejudice.2 The trial court also issued Reasons for Judgment, finding that “the porch's lack of a wrap-around type railing is an open and obvious hazard that Mr. Rainey should have seen.” The trial court concluded that “no defect existed in the design of the porch, but rather, the sun's glare blinded Mr. Rainey who then attempted to walk without first looking down.” Finding that “Mr. Rainey did not five up to his own duty to proceed as an ordinary and prudent person, especially one who has traversed those steps many times over the last 20 years,” the trial court stated that Mr. Rainey failed to carry his burden to survive the motion for summary judgment. Mr. Rainey appealed.
Motion for Summary Judgment
The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, a motion for 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. LSA-C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are the pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. See LSA-C.C.P. art. 966(A)(4). Nevertheless, the court shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made.3 LSA-C.C.P. art. 966(D)(2).
The burden of proof is on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1).
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Aucoin v. Larpenter, 2021-0064 (La.App. 1 Cir. 9/20/21), 329 So.3d 363, 368, writ denied, 2021-01505 (La. 12/7/21), 328 So.3d 420. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Bradley v. Wal-Mart Louisiana, LLC, 2021-0693 (La.App. 1 Cir. 12/22/21), 340 So.3d 18, 21, writ denied, 2022-00124 (La. 3/22/22), 334 So.3d 754.
Louisiana Civil Code article 2315 provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Louisiana Civil Code article 2317.1 defines the basis for delictual liability for defective things and 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.
The Louisiana Supreme Court recently examined its prior jurisprudence concerning unreasonably dangerous conditions and, particularly, the “open and obvious” standard. Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), 359 So.3d 467. Whether a claim arises in negligence under Article 2315 or in premises liability under Article 2317.1, the traditional duty/risk analysis is the same and is used to determine whether liability exists. Farrell, 359 So.3d at 472-73. Linder the duty/risk analysis, the plaintiff must prove five elements: (1) the defendant had a duty to conform his conduct to a specific standard; (2) the defendant's conduct failed to conform to the appropriate standard; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and, (5) proof of actual damages. If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. Id. Additionally, a claim under Article 2317.1 requires proof that the defendant had actual or constructive knowledge of the defect.4 Id.
At trial, Mr. Rainey would bear the burden of proving the elements of his claim against the defendants. Thus, for the defendants to prevail on summary judgment, they were required to show an absence of factual support for any of the elements of Mr. Rainey's cause of action. See LSA-C.C.P. art. 966(D)(1); Farrell, 359 So.3d at 473. The defendants' motion for summary judgment focuses on the breach of duty element of the duty/risk analysis. Louisiana courts apply a risk/utility balancing test to make this determination and have synthesized the risk/utility balancing test to a consideration of four pertinent factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and, (4) the nature of the plaintiffs activities in terms of social utility or whether the activities were dangerous by nature. Farrell, 359 So.3d at 474.
If a court's application of the risk/utility balancing test results in a determination that the complained-of condition is not unreasonably dangerous, a defendant is not liable because he has breached no duty, and a court may grant summary judgment upon a finding that a reasonable factfinder could only agree that a condition was not unreasonably dangerous. Farrell, 359 So.3d at 478. Therefore, we will review the admissible summary judgment evidence de novo to determine whether there are genuine issues of material fact as to that issue.
In support of their motion for summary judgment, the defendants filed a copy of a photograph and a photo sheet, containing images of the building and the porch; excerpts from Mr. Rainey's deposition; excerpts from Dr. Knight's deposition; and a copy of the lease agreement between the Richards and Dr. Knight. Although the copies of the photographs and lease agreement were not properly authenticated summary judgment evidence, no objection was made to their introduction, and we will consider same. See LSA-C.C.P. art. 966(D)(2).
The photographs show that the building has four steps leading up to a porch that provides access to the front door of the veterinary office. There is a handrail on the left side of the steps leading up to the porch, but there is no railing on the porch. The height of the porch is twenty-one inches.
In her deposition, Dr. Knight testified that she leased the property from the Richards from 1996 to 2018. She stated that while there, she made no structural changes to the property, including the porch. Dr. Knight testified that when approaching the building, the railing was on the left side of the steps, and the front door opened to the left. When exiting the building, persons would be on the left side of the porch and would step straight down the steps, and there would be no need to go to the right where there is no railing. Dr. Knight also testified that Mr. Rainey's fall occurred at approximately 10:30 a.m. and that the front door to the veterinary office faced east. Dr. Knight stated that there had been no previous falls from the porch.
Mr. Rainey testified in his deposition that he frequented the veterinary office at least once a year over a twenty-year period. He stated that he went there sometimes to buy medicine for his pets and sometimes to sell pralines. Mr. Rainey testified that he did not see the end of the porch when he fell, stating that he thought that there was porch under him. When asked if there was a reason why he did not see that the porch ended, Mr. Rainey responded, “I don't know a reason.” Mr. Rainey acknowledged the accident occurred in the morning. However, he testified that when he walked out of the building, there was “a light problem,” stating, “It was a glare. That's the light problem I'm talking about. You know, it was a glare, and I didn't look down.” Mr. Rainey later testified that the porch was dark, due to shadows on the porch. Mr. Rainey stated that he had never had any previous problems entering or exiting the veterinary office and never complained about the front porch or the lighting on the porch.
In opposition to the defendants' motion for summary judgment, Mr. Rainey filed his affidavit; a photograph of the porch; excerpts from his deposition; and the deposition of Dr. Knight. In their reply memorandum, however, the defendants objected to the opposition filed by Mr. Rainey. The defendants argued that Mr. Rainey's opposition was filed one day late and was therefore untimely and should not be considered by the trial court, citing LSA-C.C.P. art. 966(B)(2) and Auricchio v. Harriston, 2020-01167 (La. 12/10/21), 332 So.3d 660. The defendants also objected to the filing of the photograph by Mr. Rainey as improper summary judgment evidence under LSA-C.C.P. art. 966(A)(4). The trial court denied the defendants' objections as moot, stating that even if the opposition and photograph were considered, summary judgment was still appropriate. However, any opposition to the motion and all documents in support of the opposition shall be filed and served not less than fifteen days prior to the hearing on the motion. LSA-C.C.P. art. 966(B)(2); Auricchio, 332 So.3d at 663. Considering that Mr. Rainey's opposition was filed less than fifteen days prior to the hearing, we are unable to consider Mr. Rainey's opposition and exhibits.
The existence of a duty is a question of law. Farrell, 359 So.3d at 473. Under the codal articles cited herein, the general rule is that the owner or custodian of property has a duty to keep the premises in a reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises, and either correct the condition or warn potential victims of its existence. Farrell, 359 So.3d at 473-74. Consequently, the defendants owed such a duty to Mr. Rainey.
Whether a condition is open and obvious is embraced within the breach of the duty element of the duty/risk analysis and is only one factor of the risk/utility balancing test. Farrell, 359 So.3d at 478. This inquiry is not a consideration for determining the legal question of the existence of a duty. Id. Nevertheless, the Supreme Court in Farrell made it clear that summary judgment, based on the absence of liability, may be granted upon a finding that reasonable minds could only agree that the condition was not unreasonably dangerous, and, therefore, the defendant did not breach the duty owed. In such instance, the plaintiff would be unable to prove the breach element at trial. Farrell, 359 So.3d at 478. Accordingly, we look to the risk/utility balancing test in order to determine whether there was a breach of the duty owed.
The utility of the complained-of condition
The alleged defect in this matter was apparently present by design. However, no evidence was presented as to the utility of the lack of railings around the entire porch, nor do we otherwise find any utility to the lack of a railing around the entire porch.
The likelihood and magnitude of harm, including the obviousness and apparentness of the condition
The likelihood of the harm factor asks the degree to which the condition will likely cause harm. If it is likely to cause harm, that weighs in favor of finding it unreasonably dangerous. If it is unlikely to cause harm, that weighs in favor of it not being unreasonably dangerous. The magnitude of harm factor asks whether the condition presents a risk of great or small injury and the likelihood of each. This includes a consideration of the open and obviousness of the condition. Farrell, 359 So.3d at 474.
For a hazard to be considered open and obvious, it must be one that is open and obvious to all who may encounter it. If so, that reasonable person would avoid it, and the factor will weigh in favor of finding the condition not unreasonably dangerous. Farrell, 359 So.3d at 478. Additionally, the lack of reported complaints regarding a complained-of condition indicates a low risk of harm. Campbell v. Hospital Service District No. 3 for Parish of Lafourche, 2022-1118 (La.App. 1 Cir. 8/1/23), ___ So.3d ___, 2023 WL 4940674, *5.
Considering Mr. Rainey's own testimony, the testimony of Dr. Knight, and the lack of prior complaints or accidents, we find that a reasonable person would have found the lack of a railing on the porch open and obvious and would have avoided that particular area of the porch when exiting the building. The lack of a railing was apparent to all who encountered it. Furthermore, a pedestrian has a duty to see what should be seen and is bound to observe his course to see if his pathway is clear. Williams v. Liberty Mutual Fire Insurance Company, 2016-0996 (La.App. 1 Cir. 3/13/17), 217 So.3d 421, 427, writ denied, 2017-0624 (La. 6/5/17), 219 So.3d 338. Additionally, the edge of the porch is only twenty-one inches from the ground. Accordingly, this factor weighs in favor of finding the complained-of condition to not be unreasonably dangerous, and we find the likelihood and magnitude of the harm to be minimal. See Farrell, 359 So.3d at 474, 479.
Cost of preventing the harm
The record is void of any evidence regarding the cost of prevention, and we are unable to consider this factor in applying the risk/utility balancing test. See Farrell, 359 So.3d at 479.
The nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous by nature
The fourth factor involves a consideration of the nature of Mr. Rainey's activity in terms of social utility or whether the activities were dangerous by nature. See Farrell, 359 So.3d at 479. Mr. Rainey testified that he went to the veterinary office to get medicine for one of his pets. While the social utility of this activity, which is not dangerous by nature, may be important, it doesn't weigh heavily as a consideration in determining an unreasonably dangerous condition.
Considering the above, after applying the risk/utility balancing test, we find that the complained-of condition, the lack of a railing around the entire porch, was not an unreasonably dangerous condition. Therefore, no reasonable factfinder could find that the defendants breached the duty owed to Mr. Rainey. Consequently, the defendants met their initial burden of pointing out the absence of factual support for the breach of duty element of Mr. Rainey's claim. The burden shifted to Mr. Rainey to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the defendants were not entitled to judgment as a matter of law. Mr. Rainey failed to do so, and summary judgment was appropriate.
Motion for Sanctions
On June 6, 2023, the defendants filed a Motion for Sanctions with this court. Therein, they contend that Mr. Rainey has filed multiple pleadings with this court that have not been served in compliance with Rule 2-14.1 of the Uniform Rules of the Louisiana Courts of Appeal, despite signed certificates verifying that the pleadings had been sent to all counsel of record. Rule 2-14.1 provides that “legible copies of all documents filed in a Court of Appeal by any party shall be served in accordance with the provisions of Louisiana Code of Civil Procedure article 1313 to opposing counsel of record and to each opposing party not represented by counsel.”
In seeking sanctions pursuant to LSA-C.C.P. art. 863,5 the defendants sought reasonable expenses and attorney fees, as well as an order requiring Mr. Rainey to immediately serve by email all previous First Circuit filings to all counsel of record and to serve all future filings contemporaneously upon filing with this court. Mr. Rainey has responded to the motion stating that his failure to serve the filings was an unintentional or unfortunate oversight that has since been cured.
We cannot address on appeal a request for LSA-C.C.P. art. 863 sanctions arising from filings in the appellate court. The ability to impose sanctions under Article 863 is limited to the trial court.6 In re Succession of Badeaux, 2008-1085 (La.App. 1 Cir. 3/27/09), 12 So.3d 348, 353, writ denied, 2009-0822 (La. 5/29/09), 9 So.3d 166. Accordingly, we deny the defendants' motion for sanctions.
For the above reasons, the March 10, 2023 judgment of the trial court, which granted summary judgment in favor of the defendants, Thomas A. Richard, Jerylyn F. Richard, and Melinda Knight, DVM d/b/a Bayou Cane Veterinary Hospital, and dismissed with prejudice Harris Rainey's petition for damages, is affirmed. The defendants' motion for sanctions is denied. All costs of this appeal are assessed to the plaintiff, Harris Rainey.
JUDGMENT AFFIRMED; MOTION FOR SANCTIONS DENIED.
1. Mr. Rainey previously filed a partial motion for summary judgment, which the defendants opposed based on the lack of adequate discovery and which Mr. Rainey agreed was premature.
2. The trial court initially rendered a September 12, 2022 judgment, with incorporated reasons. However, on March 7, 2023, this court issued an Interim Order, stating that the September 12, 2022 judgment lacked the specificity required to constitute a final, appealable judgment, and remanded the matter for the limited purpose of requesting the trial court to sign an amended judgment in accordance with LSA-C.C.P. arts. 1918, 1951, and 2088(A)(12). The trial court signed an Amended Judgment on March 10, 2023.
3. We note that LSA-C.C.P. art. 966 was amended by Acts 2023, No. 317, § 1, and expands the exclusive list of documents that may be filed or referenced in support of or in opposition to a motion for summary judgment. Acts 2023, No. 317, § 1 also amended subsection (D)(2). However, the defendants' motion for summary judgment was filed on May 2, 2022, prior to the effective date of the amendment, and we refer to the version of Article 966 in effect prior to the 2023 amendment.
4. Similarly, claims made pursuant to the Louisiana Merchant Liability Act, LSA-R.S. 9:2800.6, require proof that the merchant had actual or constructive notice of the condition that caused the damage prior to the occurrence. See Tomaso v. Home Depot, U.S.A., Inc., 2014-1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 681.
5. Louisiana Code of Civil Procedure article 863 provides, in part:D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
6. An appellate court's authority to regulate conduct before it is governed by LSA-C.C.P. art. 2164, which provides in pertinent part that the appellate court may award damages for frivolous appeal. In re Succession of Badeaux, 12 5o.3d at 353.
Hester, J. concurs.
Response sent, thank you
Docket No: 2023 CA 0133
Decided: November 03, 2023
Court: Court of Appeal of Louisiana, First Circuit.
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