Gerald Bercy v. 337 Brooklyn, LLC

GERALD BERCY * NO. 2020-CA-0583

VERSUS *
COURT OF APPEAL
337 BROOKLYN, LLC *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-05722, DIVISION “J”
Honorable D. Nicole Sheppard,
******
Judge Tiffany G. Chase
******
(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins,
Judge Tiffany G. Chase)

Simone R. Nugent
LAW OFFICE OF SIMONE R. NUGENT
511 Baird Drive
Baton Rouge, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

Magen W. Detillieu
Richard Todd Musgrave
MUSGRAVE MCLACHLAN & PENN, LLC
1515 Poydras Street
Suite 2380
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED
MARCH 24, 2021

TGC
EAL This is a premises liability case. Appellant, Gerald Bercy (hereinafter “Mr.
SCJ
Bercy”), seeks review of the trial court’s judgment of August 21, 2020, granting

the motion for summary judgment filed by 337 Brooklyn, LLC (hereinafter “337

Brooklyn”) and dismissing Mr. Bercy’s claims with prejudice. After consideration

of the record before this Court and the applicable law, we reverse the judgment of

the trial court and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On June 10, 2017 at approximately 4:00 p.m., Mr. Bercy arrived at a friend’s

home for a gathering.1 Mr. Bercy was assisting with grilling for the gathering.

The grill was located on an exterior wooden deck, accessed from the home by three

wooden steps descending from the back door. The steps are the same color as the

deck, did not contain a handrail, and the steps are of slightly differing widths and

heights (hereinafter referred to collectively as “the stairs”). Mr. Bercy traversed

the stairs several times during the course of the evening; however, later in the

1
The home is owned by 337 Brooklyn.
1

evening, while Mr. Bercy was descending the stairs, he slipped and fell sustaining

injuries.

On June 8, 2018, Mr. Bercy filed suit, alleging that 337 Brooklyn failed to

discover, correct, and warn of an unreasonably dangerous condition in the stairs.

337 Brooklyn filed for summary judgment arguing that Mr. Bercy could not prove

several elements of his premises liability case. It also maintained that if a defect

existed, the defect was open and obvious and did not present an unreasonable risk

of harm. Mr. Bercy opposed the motion arguing that there existed genuine issues

of material fact as to whether the stairs were unreasonably dangerous. In support of

his opposition, Mr. Bercy produced an expert report of an engineer who testified

that the stairs failed to adhere to established building code standards; thus, creating

an unreasonably dangerous condition.

The trial court granted 337 Brooklyn’s motion for summary judgment

finding Mr. Bercy was aware of potential hazards in the stairs and “failed to

exercise reasonable care and caution while traversing the stairs…[a]nd that the

condition of the stairs was open and obvious.” The court concluded that assuming

a defect existed, Mr. Bercy nonetheless failed to present evidence which would

establish the necessary element of causation. This appeal followed.

STANDARD OF REVIEW

“Appellate courts review the grant or denial of a motion for summary

judgment de novo, employing the same criteria that govern a trial court’s

determination of whether summary judgment is appropriate.” Maddox v. Howard

Hughes Corp., 2019-0135, p. 4 (La.App. 4 Cir. 4/17/19), 268 So.3d 333, 337. “[A]

motion for summary judgment shall be granted if the motion, memorandum, and

supporting documents show that there is no genuine issue of material fact and that
2

the mover is entitled to judgment as a matter of law.” Romain v. Brooks

Restaurants, Inc., 2020-0243, p. 3 (La.App. 4 Cir. 11/18/20), --So.3d--, 2020 WL

677890 at *2 (quoting La. C.C.P. art 966(A)(3)).

DISCUSSION

Mr. Bercy raises two assignments of error. First, he contends that the trial

court erred in finding that he did not produce sufficient evidence to establish that a

defect in the stairs caused his fall. Second, Mr. Bercy argues that the trial court

further erred in its finding that the condition of the stairs was open and obvious,

and therefore not unreasonably dangerous. We will address each assignment of

error in turn.

The standard for granting a motion for summary judgment is set forth in La.

C.C.P. art. 966 (A)(3) which provides, in pertinent part, “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.” In “determining whether an issue is genuine,

courts cannot consider the merits, make credibility determinations, evaluate

testimony, or weigh evidence.” Fiveash v. Pat O’Brien’s Bar, Inc., 2015-1230, p.

7 (La.App. 4 Cir. 9/14/16), 201 So.3d 912, 917 (emphasis in original) (quoting

Quinn v. RISO Invest., Inc., 2003-0903, pp. 3-4 (La.App. 4 Cir. 3/3/04), 869 So.2d

922, 926).

La. C.C.P. art. 966(D)(1) provides that on a motion for summary judgment,

although the burden of proof rests with the mover, if the mover will not bear the

burden of proof at trial, the mover must only point out the absence of factual

support for one or more elements essential to the adverse party’s claim. The

burden then shifts to the adverse party who has the burden to produce factual
3

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.

“A fact is material when its existence or nonexistence may be essential to the

plaintiffs [sic] cause of action under the applicable theory of recovery; a fact is

material if it potentially insures or precludes recovery, affects a litigant's ultimate

success, or determines the outcome of the legal dispute.” Chapital v. Harry

Kelleher & Co., Inc., 2013-1606, p. 5 (La.App. 4 Cir. 6/4/14), 144 So.3d 75, 81.

Whether a fact is material is a determination that must be made based on the

applicable substantive law. Roadrunner Transp. Sys. v. Brown, 2017-0040, p. 7

(La.App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Smith v. Our Lady of the

Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751).

In support of its motion for summary judgment, 337 Brooklyn submitted Mr.

Bercy’s petition for damages, deposition testimony, and pictures of the scene. It

argued that there was no defect in the stairs and that the stairs did not present an

unreasonable risk of harm. Thus, 337 Brooklyn maintained that Mr. Bercy would

be unable to establish a causative (causal) link between his fall and his injuries.

The burden then shifted to Mr. Bercy, pursuant to La. C.C.P. art. 966(C)(2), to

present specific facts to establish the existence of a genuine issue of material fact.

Mr. Bercy submitted an expert report of a civil engineer, Warren L. Dietz,

who identified several defective conditions in the stairs, noting that the stairs did

not comply with the 1969 Standard Building Code.2 Specifically, Mr. Dietz’s

report pointed out the following: (1) the treads of the stairs were the same color as

the flooring of the deck; (2) the stairs lacked handrails; and (3) the actual steps

2
The structure, located 337 Brooklyn Street, was built in the early 1970’s.
4

differed in height and width.3 Mr. Bercy contends these violations alone were

sufficient to create a genuine issue of material fact as to causation. We agree.

The stairs were the same color as the deck and differed in height and width.

Moreover, there was no handrail, nor any other device, that would have provided

stability. The trial court emphasized that Mr. Bercy traversed the stairs several

times and had been drinking prior to his fall. While those factors may have

contributed to his fall, we cannot conclusively find that the structural defects of the

stairs were not a factor. We find Mr. Bercy provided sufficient facts to suggest

that a defect in the stairs may have contributed to his fall. The element of

causation is fact intensive and determined by the trier of fact who will weigh the

evidence presented by the parties. Thus, we find the trial court erred in finding Mr.

Bercy failed to establish causation.

OPEN AND OBVIOUS

We now turn to the trial court’s finding that the condition of the stairs was

open and obvious and therefore not unreasonably dangerous. Mr. Bercy alleges

that his fall and resulting injuries were caused by the negligent, acts, omissions and

want of care of 337 Brooklyn. See La. C.C. arts. 2317, 2317.1 and 2322. “‘A

defect, within the meaning of Article 2317.1, is a condition or imperfection in an

object that causes it to present an unreasonable risk of injury to persons exercising

ordinary care.’” Maddox, p. 6, 2019-0135, 268 So.3d at 338 (quoting Conner v.

Kraemer-Shows Oilfield Servs., LLC, 33 F.Supp.3d 725, 728 (W.D. La. 2014)).

“The existence of a defect may not be inferred solely from the fact that an accident
3
Mr. Dietz’s report specified the defects as follows: (1) lack of contrast between the treads of the
stairs and the deck surface which would fail to contain visual cues that would facilitate improved
step identification; (2) lack of handrail on either side of the stairs did not comply with Section
1115.5 of the 1969 Standard Building Code which requires all stairs have walls, well-secured
handrails, or guards on both sides of the stairs; and (3) the tread widths and riser heights of the
steps did not comply with Section 1115.3 of the 1969 Standard Building Code.
5

occurred; rather, a plaintiff is required to prove, by a preponderance of the

evidence, the existence of a defect and that the defect caused the plaintiff's

damages.” Maddox, 2019-0135 p. 6, 268 So.3d at 338. La. C.C. art. 2322

“specifically modifies liability under Article 2317 with respect to the owner of a

ruinous building or defective component part of that building.” Hooper v. Brown,

2015-0339, p. 6 (La.App. 4 Cir. 5/22/15), 171 So.3d 995, 1000 (quoting

Broussard’s v. State of Louisiana through the Office of State Bldgs., 2012-1238, p.

8 (La. 4/5/13), 113 So.3d 175, 182). A plaintiff must prove the following elements

to recover from such an owner: (1) ownership of the building; (2) that the owner

knew, or in the exercise of reasonable care, should have known of the ruin or

defect; (3) that the damage could have been prevented by the exercise of

reasonable care; (4) that the owner failed to exercise such reasonable care; and (5)

causation. Broussard’s, 2012-1238, p. 8, 113 So.3d at 182-183, citing La. C.C. Art.

2322. Our jurisprudence further requires that a plaintiff show that the ruinous

building or its defective component part creates an unreasonable risk of harm. Id.

(citing Entrevia v. Hood, 427 So.2d 1146, 1148-49 (La. 1983)).

The stairs are a component part of the building owned by and in the custody

of 337 Brooklyn; thus the threshold question is whether the stairs, a component

part, created an unreasonable risk of harm. See e.g. Hooper, 2015-0339, p. 7, 171

So.3d at 1000. To determine whether a condition is unreasonably dangerous, a

factor to consider is the likelihood and magnitude of harm, including the

“obviousness and apparentness” of the condition. See Carrero v. Mandina’s, Inc.,

2019-0158, p. 6 (La.App. 4 Cir. 8/7/19), --- So. 3d ----, 2019 WL 3719552 at *3

(quoting Bufkin v. Felipe’s, LLC, 2014-0288, p. 6 (La. 10/15/14), 171 So.3d 851,

856). “Generally, a defendant does not have a duty to protect against an open and
6

obvious hazard.” Broussard’s, 2012-1238, p. 10, 113 So.3d at 184. For a defect to

be considered open and obvious, the danger that creates the defect must be

apparent to all, i.e., everyone who may potentially encounter it. Broussard’s,

2012-1238, p. 23, 113 So.3d at 192. “[A]bsent any material factual issue, the

summary judgment procedure can be used to determine whether a defect is open

and obvious and thus does not present an unreasonable risk of harm.” Jones v.

Stewart, 2016-0329, p. 14 (La.App. 4 Cir. 10/5/16), 203 So.3d 384, 393.

337 Brooklyn presented photographs depicting the scene, which it contends

establish “just a basic stair.” 337 Brooklyn also presented the deposition testimony

of Mr. Bercy, who had traversed the stairs several times before his fall. Mr. Bercy

testified that one had to take one’s time going up the steps because there were no

railings. 337 Brooklyn argued Mr. Bercy’s familiarity with the stairs made their

condition open and obvious to him. Assuming that 337 Brooklyn established its

prima facie case, the burden shifts to Mr. Bercy to set forth genuine issues of

material fact as to whether the stairs were unreasonably dangerous. As stated

above, Mr. Bercy presented expert testimony regarding the lack of a handrail,

continuity of coloring of the stairs and deck and specifications of the stairs’ height

and width from Mr. Dietz. Mr. Bercy contended that Mr. Dietz’s findings were

sufficient to create a genuine issue of material of material fact as to whether the

stairs’ condition is unreasonably dangerous. Although 337 Brooklyn attempts to

refute these arguments by noting that the lack of handrails and lack of tread

contrast were open and obvious to Mr. Bercy because he used the stairs before his

fall, we find these arguments unpersuasive. The pivotal issue is not whether the

condition was open and obvious to Mr. Bercy, who had traversed the stairs several

times that day, but whether the condition was open and obvious. Moreover, the
7

question remains whether the existence of the code violations could have caused

Mr. Bercy to fall. 337 Brooklyn submitted argument rather than produce tangible

evidence to refute Mr. Bercy’s allegations.

In determining whether a genuine issue of material fact exists on a motion

for summary judgment, courts cannot evaluate testimony or weigh evidence.

Fiveash, 2015-1230, p.7, 201 So.3d at 917 (quoting Quinn, 2003-0903, pp. 3-4,

869 So.2d at 926). In the case sub judice, the trial court weighed evidence and

evaluated testimony, finding that the condition of the stairs was open and obvious

based solely on Mr. Bercy’s deposition testimony. This Court has found that expert

testimony is sufficient to create a genuine issue of material fact as to whether a

condition was unreasonably dangerous, or open and obvious. See Dupre v.

Saenger Arts Ctr., Inc., 508 So.2d 837, 838 (La.App. 4 Cir. 5/12/87) (court

accepted testimony of plaintiff’s safety expert that a lack of handrails on steps

constituted unreasonable risk of harm); Couvillion v. Riverside Properties., L.L.C.,

2017-1000, p. 4 (La.App. 4 Cir. 6/20/18), 249 So.3d 907, 909 (testimony of expert

engineer regarding worn-out stairs and lack of handrails created a genuine issue of

material fact as to the existence of an unreasonably dangerous condition).

We find that Mr. Deitz’s report was sufficient to create a genuine issue of

material fact as to whether the condition of the stairs was open and obvious. Thus,

we find the trial court erred in granting summary judgment finding the condition of

the stairs was open and obvious and therefore not unreasonably dangerous.

8

CONCLUSION

For the above reasons, we reverse the trial court’s granting of summary

judgment in favor of 337 Brooklyn and remand the matter to the trial court for

further proceedings consistent with this opinion.

REVERSED AND REMANDED

9