KERRY ABEL v. EASTERN ROYAL KITCHEN EAST BUFFET FOREVER GROWING EAST BUFFET CPW SEVERN INVESTMENTS ADMIRAL INSURANCE COMPANY AND GENERAL STAR NATIONAL INSURANCE COMPANY (2022)

I respectfully, dissent, in part, from the denial of this writ application. I would grant the writ, in part, reverse the lower courts’ judgments, in part, and grant a partial summary judgment in favor of defendants holding the expansion joint between the cement slabs in the sidewalk where plaintiff allegedly tripped and fell was not a defect in the premises and posed no unreasonable risk of harm to plaintiff.

In the petition, plaintiff alleges that he “tripped on a tar-like substance protruding from the expansion joint between the cement slabs of the handicapped ramp and fell. Further, due to the lack of hand rails, unsafe surfacing and the unlevel walkway of the entrance ramp, [he] was unable to stop his fall and he fell to the ground hitting the curb of the parking lot and said ramp.” Defendants filed a motion for summary judgment, arguing there was no defect in the premises. In support, defendants offered the sworn expert opinion of Dean Duplantier, a licensed architect. Mr. Duplantier inspected the sidewalk on the property at issue and submitted a lengthy report, which includes photographs of the expansion joint and cement slabs at issue. He concluded the elevation caused by the expansion joint at issue did not create an unreasonable risk of harm. He explained the expansion joint was necessary to the design of the sidewalk and any elevation in the walkway created by the expansion joint was within standards created by the Americans with Disability Act and the American Society for Testing and Materials Standards. He further opined that “the subject expansion joint is easy to observe and pedestrians should be expected to safely traverse the sidewalk without incident.” The court of appeal correctly determined that the unauthenticated expert report of architect Tony DiNicola submitted by plaintiff in opposition defendants’ motion for summary judgment is inadmissible under La. Code Civ. P. art. 966(A)(4).¹ Thus, in the absence of evidence from plaintiff that controverts the expert opinion and report of Mr. Duplantier, I would grant a partial summary judgment in favor of defendants holding the expansion joint between in the cement slabs was not a defect and posed no unreasonable risk of harm to plaintiff.

FOOTNOTES

1.   La. Code Civ. P. art. 966(A)(4) provides:The 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. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.

McCallum, J., dissents in part and assigns reasons.