Brandy Barker Versus City of Grand Isle

BRANDY BARKER NO. 19-C-451

VERSUS FIFTH CIRCUIT

CITY OF GRAND ISLE COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 786-834, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

January 08, 2020

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.

REVERSED
MEJ
RAC
JJM

COUNSEL FOR PLAINTIFF/RESPONDENT,
BRANDY BARKER
David P. Vicknair
Keegan E. Chopin
Hope E. Hughes

COUNSEL FOR DEFENDANT/RELATOR,
TOWN OF GRAND ISLE
Christopher M. Moody
Albert D. Giraud

JOHNSON, J.

Relator, City of Grand Isle1 (“Grand Isle”), seeks review of the trial court’s

September 4, 2019 judgment denying its Motion for Summary Judgment against

Respondent/Plaintiff, Brandy Barker. Grand Isle prays that this Court grant its

motion for summary judgment and dismiss the matter, with prejudice, at plaintiff’s

cost. For the following reasons, we grant the writ application.

On April 13, 2018, Brandy Barker attended the Blessing of the Fleet Fair

organized by Grand Isle. Ms. Barker first used the restroom trailer at least 20

minutes after arriving at the fair. She testified that she wore flip-flops that night

that were “maybe a year old,” and recalled that the floors were a little wet, but “not

like the second time” she used the restroom. Ms. Barker went to use the restroom

trailer approximately two hours later and noticed that the floors were very wet.

She said that she could not recall whether or not the floor underneath the stall she

entered was wet. As she prepared to use the restroom, Ms. Barker slipped and fell.

As a result of the fall, Ms. Barker broke her tibia, fibia and ankle, and dislocated

her other ankle.

Grand Isle moved that it was entitled to summary judgment because of the

lack of evidence that Grand Isle had constructive notice of the restroom trailer

conditions and that the alleged defective condition was open and obvious, and

therefore not unreasonably dangerous. At the August 28, 2019 hearing on the

motion, Grand Isle argued that summary judgment was not precluded on the issue

of whether a condition was open and obvious. The trial judge noted that he has

been overturned before by this Court because “water on the floor is, difficult to

prove to be open and obvious to everyone and that that was a question of fact, and

that’s, that’s where I have to fall.”

1
We note that area is incorporated as “Town of Grand Isle” and case caption is incorrect.

19-C-451 1

Appellate courts review motions for summary judgment de novo, asking the

same questions as the trial court to determine whether summary judgment is

appropriate. Salathe v. Parish of Jefferson Through Department of Sewerage, 19-

251 (La.App. 5 Cir. 7/22/19); -- So.3d --, 2019 WL3294958 at **3 citing

Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773, 776. In determining

whether there are any genuine issues of material fact, courts cannot consider the

merits, make credibility determinations, evaluate testimony, or weigh evidence. Id.

citing Davis v. Scottsdale Ins. Co., 13-255 (La. App. 5 Cir. 10/30/13); 128 So.3d

471, 475-77. “Under La. R.S. 9:2800, in order to prove a public entity is liable for

damages caused by a thing, the plaintiff must establish: (1) custody or ownership

of the defective thing by the public entity; (2) the defect created an unreasonable

risk of harm; (3) the public entity had actual or constructive notice of the defect;

(4) the public entity failed to take corrective action within a reasonable time; and

(5) causation.” Chambers v. Village of Moreauville, 11-898 (La. 1/24/12); 85

So.3d 593, 597.

Grand Isle urges that there is a lack of factual support for Ms. Barker’s claim

that it had constructive notice of the condition of the restroom trailer at the fair.

The plaintiff bears the burden at trial of proving actual or constructive notice.

White v. Select Specialty Hosp., 12-611 (La.App. 5 Cir. 3/13/13); 110 So.3d 1254,

1260-61. Constructive notice is defined by La. R.S. 9:2800 as the existence of

facts that infer actual knowledge. Jones v. Hawkins, 98-1259 (La. 3/19/99); 731

So.2d 216, 220.

In the instant case, Ms. Barker and the other affiants admit that they did not

advise Fair employees of the restroom trailer conditions. Two of the three

witnesses who accompanied Ms. Barker to the fair said in their sworn affidavits

that they went into the same restroom trailer one hour and one and a half hours

before Ms. Barker slipped and fell in the stall. All witnesses, including the one

19-C-451 2

who accompanied Ms. Barker to the restroom trailer the first time, approximately

thirty minutes after the group arrived at the fair, reported that the restroom floor

was wet with clear water/liquid. All three also noted that it had been raining for

several hours that night, and the Fair rides were shut down because of the weather.

If the mover will not bear the burden of proof at trial . . . 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 . . . 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. La. C.C.P 966(D)(1). Grand Isle argues that the wet

restroom trailer floor was an open and obvious condition, and therefore not

unreasonably dangerous. Based on the evidence presented, we agree. Ms. Barker

and her witnesses all testified that it was raining outside that night and the restroom

trailer floor was wet. The affiant that went to the same restroom trailer where Ms.

Barker’s accident took place approximately an hour and a half earlier testified that

the toilets were clearly backed up and had been overflowing, the floor of the

restroom trailer was very dirty, “muddy around the sink and general walking

spaces,” and full of water and that because the clear nature of the liquid she “could

not see whether the floors in the actual stalls were flooded [. . . but] assumed it was

slippery and wet due to the toilet paper sticking to the floors in the bathroom stall I

observed[.]”

Summary judgment is not precluded “[. . .] when no legal duty is owed

because the condition encountered is obvious and apparent to all and not

unreasonably dangerous.” Allen v. Lockwood, 14-1724 (La. 2/13/15); 156 So.3d

650, 653 citing Bufkin v. Felipe’s Louisiana, LLC, 14-0288 (La. 10/15/14); 171

So.3d 850, 861 n.3. “The determination of an unreasonable risk of harm is a

question of fact; however [. . .], our jurisprudence does not preclude the granting of

a motion for summary judgment in cases where the plaintiff is unable to produce

19-C-451 3

factual support for his or her claim that a complained-of condition or thing is

unreasonably dangerous. Bufkin, supra at 859.

Considering the foregoing, we find that the water on the restroom floor was

an open and obvious condition and, therefore, not unreasonably dangerous.

DECREE

Based on the foregoing reasons, we find that the Ms. Barker is unable to

prove the City of Grand Isle is liable under La. R.S. 9:2800 for damages. We grant

Grand Isle’s motion for summary judgment and Ms. Barker’s petition is dismissed,

without prejudice. All parties to bear their own costs on appeal.

REVERSED

19-C-451 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

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
JANUARY 8, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-C-451
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
CHRISTOPHER M. MOODY (RELATOR) KEEGAN E. CHOPIN (RESPONDENT)

MAILED
ALBERT D. GIRAUD (RELATOR) DAVID P. VICKNAIR (RESPONDENT)
ATTORNEY AT LAW HOPE E. HUGHES (RESPONDENT)
1250 SW RAILROAD AVENUE ATTORNEYS AT LAW
SUITE 170 909 POYDRAS STREET
HAMMOND, LA 70403 SUITE 1100
NEW ORLEANS, LA 70112