Susan Robinson and Douglass Robinson, III v. Pointe Coupee Parish School Board and Louisiana Claims Administrator (LoCa)

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 CA 0215

SUSAN ROBINSON AND DOUGLASS ROBINSON, III

VERSUS

POINTE COUPEE PARISH SCHOOL BOARD AND
LOUISIANA CLAIMS ADMINISTRATOR (LOCA)

Judgment Rendered: FEB 2 1. 2024

Appealed from the
18th Judicial District Court
In and for the Parish of Pointe Coupee
State of Louisiana
Docket No. 49987

The Honorable Elizabeth A. Engolio, Judge Presiding

James F. Beatty, Jr. Counsel for Plaintiff/Appellant,
Baton Rouge, Louisiana Susan Robinson and
Douglass Robinson, III

D. Scott Rainwater Counsel for Defendant/Appellee,
Chris W. Caswell Pointe Coupee Parish School Board
Claire E. Sauls
Baton Rouge, Louisiana

BEFORE: THERIOT, PENZATO, AND MILLER, JJ.

MILLER, J.

Susan Robinson and Douglass Robinson, III appeal a summary judgment

dismissing their claims against Pointe Coupee Parish School Board, with prejudice,

based on a finding that the complained -of condition is not unreasonably dangerous.

For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Susan Robinson (" Ms. Robinson") and Douglass Robinson, III (" Mr.

Robinson") filed suit against Pointe Coupee Parish School Board (" School Board")

and Louisiana Claims Administrator, for injuries allegedly sustained in a trip and

fall incident at STEM Magnet Academy of Pointe Coupee (" STEM") on October

8, 2019. Ms. Robinson was attending an event at STEM when she allegedly tripped

on either an expansion joint in the sidewalk or where the sidewalk was broken by

an inclined area and fell.' The Robinsons alleged that, as a result of the fall, Ms.

Robinson suffered physical injuries, emotional distress, mental anguish, and

mental pain and suffering. Additionally, the Robinsons alleged that Mr. Robinson

sustained a loss of consortium, society, companionship, and services.

On February 23, 2022, the School Board filed a motion for summary

judgment, contending that the Robinsons could not prove that the condition of the

sidewalk was unreasonably dangerous. Further, it alleged that even if the

Robinsons could prove that the defect created an unreasonable risk of harm, they

would be unable to prove that the School Board had actual or constructive notice

of the defect. In support of its motion, the School Board attached a statement of

uncontested material facts; a list of essential legal elements; the petition for

damages; an excerpt of the deposition of Ms. Robinson; photographs of the

The location of the trip and fall incident is unclear. Ms, Robinson offers two possible
locations. This uncertainty is central to our analysis.

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sidewalk2;

and the affidavit of Lacey Bueche (" Ms. Bueche") with an incident

report and photographs of the sidewalk attached. The Robinsons opposed the

motion and attached the affidavit of Junior Stanley (" Mr. Stanley") with

photographs of the sidewalk attached.

The School Board filed a reply memorandum and an objection to Mr.

Stanley' s affidavit, asserting that it was not made on personal knowledge and

contained inadmissible hearsay. Thereafter, the Robinsons filed a response to the

School Board' s objection to Mr. Stanley' s affidavit and an objection to Ms.

Bueche' s affidavit.' The School Board filed a motion to strike the Robinsons'

response and objection.

At the hearing on the motion, the trial court indicated that the School Board

was able to show that the crack in the sidewalk —where the sidewalk was broken

near an inclined area — was under an inch and a half, so the complained -of

condition was not unreasonably dangerous. Based upon this showing, the trial

court granted the School Board' s motion for summary judgment and dismissed the

Robinsons' claims against the School Board, with prejudice. A judgment in

conformity with this ruling was signed on September 6, 2022, therein also granting

the School Board' s motion to strike and overruling the School Board' s objection to

Mr. Stanley' s affidavit. The Robinsons now appeal, contending that the trial court

erred in granting the School Board' s motion for summary judgment due to the

existence of genuine issues of material fact.

2 Photographs are not included in the list of documents that may be filed in support of or
in opposition to a motion for summary judgment. See La. C. C. P. art. 966( A)(4). However, the
court shall consider any documents to which no objection is made, See La. C. C. P. art. 966( D)( 2).
Here, the Robinsons did not object to the photographs filed in support of the School Board' s
motion for summary judgment, so the trial court properly considered them.

This objection is not contained in the record as the trial court struck the pleading.

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SUMMARY JUDGMENT

An appellate court reviews the grant or denial of summary judgment de novo

under the same criteria governing the trial court' s determination of whether

summary judgment is appropriate. MN Resources LLC v. Louisiana Hardwood

Products LLC, 2016- 0758 ( La. App, 1st Cir. 7126117), 225 So. 3d 1104, 1109, writ

denied, 2017- 1748 ( La. 1215117), 231 So. 3d 624. Because this court reviews

summary judgments de novo, we afford no deference to the trial court' s underlying

reasoning for its judgment. John River Cartage, Inc. v. Louisiana Generating, LLC,

2020- 0162 ( La. App. 1st Cir. 314120), 300 So. 3d 437, 453 n. 12. On de novo review,

we also afford no deference to the legal standard or analysis applied by the trial

court. Tucker v. Chatfield, 2023- 0343 ( La. App. 1st Cir. 1119123), --- So. 3d ----, ----

2023 WL 7410052, * 4.

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. La. C. C. P. art. 966( A)( 3). The summary judgment

movant maintains the burden of proof. La. C. C. P. art. 966(D)( 1). Nevertheless, if

the movant will not bear the burden of proof at trial on the issue before the court on

the motion, his burden is satisfied by pointing out an absence of factual support for

one or more elements essential to the adverse party' s claim, action, or defense.

Thereafter, the adverse party must produce factual support sufficient to establish he

will be able to satisfy his evidentiary burden of proof at trial. If the adverse party

a Louisiana Code of Civil Procedure article 966 was subsequently amended by La. Acts
2023, No. 317, § l; La. Acts 2023, No. 368, § 1, effective August 1, 2023. This court has
determined that the amendments are substantive and cannot be applied retroactively. See La.
C. C. P. art. 966, Comments — 2023, Comment ( f); Ricketson v. McKenzie, 2023- 0314 ( La. App.
1 ' t Cir. 1014123), _ So. 3d _, _, 2023 WL 7037495, * 4.Accordingly, in the instant matter, we
apply the version of La. C.C. P. art. 966 in effect at the time the motions for summary judgment
were submitted and heard.

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fails to meet this burden, the mover is entitled to judgment as a matter of law. La.

C. C.P. arts. 966( D)( 1).

OBJECTIONS

Louisiana Code of Civil Procedure article 966( D)(2) states that any

objection to a document shall be raised in a timely filed opposition or reply

memorandum. The court shall consider all objections prior to rendering judgment.

The court shall specifically state on the record or in writing which documents, if

any, it held to be inadmissible or declined to consider. La. C. C. P. art. 966( D)(2).

The abuse of discretion standard applies to the trial court' s ruling.5 Pottinger v.

Price, 2019- 0183 ( La. App. I" Cir. 10123119), 289 So. 3d 1047, 1053.

The School Board filed a timely objection to Mr. Stanley' s affidavit, which

was overruled by the trial court. The trial court found that Mr. Stanley' s lay

witness measurements and the janitor' s statements contained in Mr. Stanley' s

affidavit were admissible. We note that the janitor' s statements were improper,

imbedded hearsay within an otherwise appropriate affidavit. Even when no

objection is made to summary judgment evidence, the court must still decide de

novo whether we should give the documents any evidentiary value. See La. C. C.P.

art. 966( D)( 2).

Next, the Robinsons filed a response to the School Board' s objection to Mr.

Stanley' s affidavit and an objection to Ms. Bueche' s affidavit. This document is

not contained in the record. The School Board filed a motion to strike' the

Robinsons' response and objection. However, we note that the objection to Ms.

5 Although we review the grant or denial of summary judgment de novo, this court has
applied the abuse of discretion standard when considering the trial court' s ruling on an objection
contained in a timely filed opposition or reply memorandum in accordance with La. C. C. P. art.
966( D)( 2). See Loupe v. Roman Catholic Church of Diocese of Baton Rouge, 2022- 1151 ( La.
App. 1" Cir. 5/ 9/ 23), 368 So. 3d 583, 586- 587.

The amendments to La. C. C. P. art. 966( D)( 2) by La. Acts 2015, No. 422, § 1, effective
January 1, 2016, specifically removed the motion to strike as a means of raising an objection to a
document offered by an adverse party in support of or in opposition to a motion for summary
judgment. See La. C. C. P. art. 966, Comments —2015, Comment ( k).

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Bueche' s affidavit was not contained in an opposition memorandum that was

timely filed in accordance with La. C. C.P. art. 966( D)(2). The court may consider

only those documents filed in support of or in opposition to the motion for

summary judgment and shall consider any documents to which no objection is

made. Id. Therefore, the affidavit of Ms. Bueche may be considered.

LIABILITY

The Robinsons' claims against the School Board are based on La. C.C. arts.

2317 and 2317. 17, as limited to public entities by La. R.S. 9: 2800. Louisiana Civil

Code article 2317 provides that we are responsible, not only for the damage

occasioned by our own act, but for that which is caused by the act of persons for

whom we are answerable, or of the things which we have in our custody. However,

La. C. C. art. 2317. 1 modifies La. C. C. art. 2317 to further require proof that ( 1) the

owner or custodian of a defective thing has knowledge of the defect, ( 2) the

damage could have been prevented by the exercise of reasonable care, and ( 3) the

failure to exercise reasonable care. Garrett v. Department of Children and Family

Services, 2023- 0412 ( La. App. 1st Cir. 1119123), --- So. 3d ----, ----, 2023 WL

7403596, * 2.

Custodial liability under La. C. C. art. 2317 is further limited as to public

entities' by La. R.S. 9: 2800, which requires additional proof that the public entity

Pursuant to La. C. C. art. 2317, 1,

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.

s Louisiana Revised Statutes 9: 2800( G)( 1) states:

Public entity" means and includes the state and any of its branches, departments,
offices, agencies, boards, commissions, instrumentalities, officers, officials,

employees, and political subdivisions and the departments, offices, agencies,

boards, commissions, instrumentalities, officers, officials, and employees of such
political subdivisions. Public entity also includes housing authorities, as defined

511

had notice and opportunity to repair the defect. Garrett, --- So. 3d at ----, 2023 WL

7403596 at * 2. Specifically, La. R.S. 9: 2800( C) provides, in pertinent part:

Except as provided for in Subsections A and B of this Section, no
person shall have a cause of action based solely upon liability
imposed under [ La. C. C. art.] 2317 against a public entity for damages
caused by the condition of things within its care and custody unless
the public entity had actual or constructive notice of the particular
vice or defect which caused the damage prior to the occurrence, and
the public entity has had a reasonable opportunity to remedy the
defect and has failed to do so.

As such, 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.

Jefferson v. Nichols State University, 2019- 1137 ( La. App. l' Cir. 5111/ 20), 311

So. 3d 1083, 1085, writ denied, 2020- 00779 ( La. 1114/ 20), 303 So. 3d 623. 9 Failure

to meet any one of these statutory requirements will defeat a claim against a public

entity. Id. at 1086. The School Board is a public entity under La. R. S.

9: 2800( G)( 1).

In her deposition testimony, Ms. Robinson indicated that Mr. Stanley was

with her at the time of the incident and that the day after the incident he took

pictures of the location where Ms. Robinson tripped. Ms. Robinson recognized that

there were two cracks in the sidewalk and stated that she tripped on the expansion

joint because there was a " little lip up." Ms. Robinson indicated that she did not

trip where the sidewalk was broken near an inclined area. She further stated that

in R.S. 40: 384( 15), and their commissioners and other officers and employees and
sewerage and water boards and their employees, servants, agents, or

subcontractors.

9 We note that the defendant in this case is Nicholls State University and not Nichols
State University. In the caption of the case, " Nicholls" is misspelled.

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she had walked on that sidewalk several times before and did not notice any cracks

or breaks in the sidewalk before the incident. °

Photographs of the sidewalk showed that there were two so- called " cracks"

an expansion joint and a location where the sidewalk connected to an inclined

area. A photograph of the expansion joint referenced by Ms. Robinson at her

deposition is included in the group of photographs submitted in support by the

School Board. On that photograph, the attorney circled the crack at the location

where Ms. Robinson indicated that she tripped —the expansion joint.

For a hazard to be considered open and obvious, it must be one that is open and
obvious to all who may encounter it. Farrell v. Circle K Stores, Inc., 2022- 00849 ( La. 3/ 17/ 23),
359 So. 3d 467, 478. The open and obvious concept asks whether the complained -of condition
would be apparent to any reasonable person who might encounter it. if so, that reasonable person
would avoid it, and the factor will weigh in favor of finding the condition not unreasonably
dangerous. Id. Whether the plaintiff has knowledge of the condition is irrelevant in determining
whether the thing is defective. Otherwise, the analysis resurrects the long ago abolished doctrines
of assumption of the risk and contributory negligence, both of which focus on the knowledge and
acts of the plaintiff. The plaintiff' s knowledge is appropriately considered in assessing fault, but
is not appropriate for summary judgment proceedings. Id.

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Additionally, the School Board submitted the affidavit of Ms. Bueche, the

principal of STEM, who stated that she completed an accident report based on

information given to her by Mr. Stanley." Ms. Bueche indicated that she did not

see the incident occur and had no reports of anyone falling on this sidewalk prior to

Ms. Robinson. Ms. Bueche attached photographs of the area where Ms. Robinson

reportedly fell, which were photographs of the area where the sidewalk was broken

by the incline. 12

Based on our de novo review of the documents offered by the School Board

in support of its motion for summary judgment, we find the School Board

presented sufficient evidence to establish that there was an absence of factual

support for two elements necessary to the Robinsons' claims — that the defect

created an unreasonable risk of harm or that the School Board had actual or

constructive notice of the defect. Consequently, the burden shifted to the

Robinsons to produce factual support sufficient to establish that they would be able

to satisfy their burden of proof at trial or that a genuine issue of material fact

existed and that the School Board was not entitled to judgment as a matter of law.

In opposition to the School Board' s motion, the Robinsons submitted the

affidavit of Mr. Stanley, the individual who was with Ms. Robinson at the time of

the accident. Mr. Stanley stated that he witnessed the incident, that he took

photographs of the area where the incident occurred, that Ms. Robinson tripped

where the sidewalk connected to the inclined area, and that he would estimate the

change in elevation to be two to three inches. 'I He further indicated that, after Ms.

I i The accident report was attached to Ms. Bueche' s affidavit.

12 Ms. Bueche indicated that she accompanied Neil Covington of Louisiana Claims
Administrators when he viewed and took measurements of the area. Since Mr. Stanley claimed
that Ms. Robinson did not trip over the expansion joint, no measurements were taken at that
location.

Mr. Stanley stated that there appeared to be a pour of concrete on top of the sidewalk,
which was formed into a ramp. Then, the bottom portions of that ramp were broken off and
created an elevation change.

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Robinson fell, a gentleman who identified himself as the janitor stated that " it' s

been like that for a long time" and " another person had fallen ... in the very same

spot where [ Ms. Robinson] fell." Mr. Stanley attached three photographs, which

indicated that the location of the incident was where the sidewalk connected to the

inclined area.

It is not clear from the record whether Ms. Robinson tripped on an

expansion joint as indicated in her deposition or where the sidewalk was broken

near an inclined area as claimed by Mr. Stanley in his affidavit. Because the

location of the incident is not established, it is difficult to determine whether a

defect created an unreasonable risk of harm and caused the accident.

Courts have adopted a risk -utility balancing test to determine whether a

condition is unreasonably dangerous. 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. Farrell v. Circle

K Stores, Inc., 2022- 00849 ( La. 3/ 17123), 359 So. 3d 467, 474. This Court has

applied the risk -utility balancing test to determine whether a defect in a sidewalk

creates an unreasonable risk of harm, and determined there is no fixed rule to

determine whether a defect in a sidewalk is unreasonably dangerous. Chambers v.

Village of Moreauville, 2011- 898 ( La. 1124112), 85 So. 3d 593, 598. Whether a

risk is unreasonable is a factual matter that must be determined in light of each

particular case' s facts and circumstances, not a simple rule of law which can be

applied mechanically to the facts of the case. See Manchester v. ANPAC Louisiana

Ins. Co., 2018- 1379 ( La. App. 1st Cir. 5131119), 278 So. 3d 993, 997. Even so,

summary judgment may be appropriate to resolve the issue of whether a condition

presented an unreasonable risk of harm when the facts are undisputed. See Prince

to

v. Rouse' s Enterprises, L.L.C., 2020--150 ( La. App. 5th Cir. 1212/ 20), 305 So. 3d

1078, 1086.

The School Board contends that summary judgment is appropriate in this

case despite the dispute as to whether Ms. Robinson tripped on an expansion joint

or where the sidewalk was broken near an inclined area due to the height variations

of both locations." However, while there may be a dispute regarding the deviation

of the area where the sidewalk was broken near the incline, Ms. Robinson denies

tripping at this location. Further, no one submitted any measurements of the

expansion joint area, and it is not possible to tell whether there is a deviation from

the angle of the photographs submitted. Thus, we are unable to conclude that either

the expansion joint or the inclined area is defective and presents an unreasonable

risk of harm.

Additionally, the Robinsons failed to present factual support to establish the

School Board had either actual or constructive knowledge of a defect in the

expansion joint, which is also an essential element of the Robinsons' claim. See

La. R.S. 9: 2800( C). Actual knowledge has been defined as knowledge of

dangerous defects or conditions by a corporate officer or employee of the public

entity having a duty either to keep the property involved in good repair or to report

defects and dangerous conditions to the proper authorities. Davis v. City of Baton

In support of its argument, the School Board contended that there was no unreasonable
risk of harm since the crack had a deviation of less than one -and -one- half inch and that there is
no unreasonable risk of harm in expansion joints. Louisiana jurisprudence has consistently held
that a one -and -one-half inch deviation does not generally present an unreasonable risk of harm.
Chambers v. Village of Moreauville, 2011- 898 ( La. 1124112), 85 So. 3d 593, 598. Further, the
Louisiana Supreme Court has found that the utility of expansion joints is clearly apparent. Reed
v Wal-Mart Stores, Inc., 1997- 1174 ( La. 3141 98), 708 So. 2d 362, 366. As to the specific utility
of expansion joints, the Reed court noted that the joints are necessary for the safety and
maintenance of larger paved surfaces, because they allow for the concrete to expand and contract
as it heats and cools due to weather. Id. Absent the expansion joints, the concrete blocks would
contract and later crack and split in the cold. Id. Subjected to heat, the concrete blocks would
press against each other, cracking, shifting and buckling, which would produce hazardous
deviations in elevation. Id. Further, the cost of maintaining such an area would be prohibitive as
it would necessitate frequent replacement of the fragmented concrete blocks. Id. Although
decided over 25 years ago, the Reed court' s reasoning on the utility of paved surfaces remains
valid. See Prince v. Rouse' s Enterprises, L.L.C_, 2020- 150 ( La. App. 5"' Cir. 1212120), 305 So.
3d 1078, 1084.

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Rouge, 2017- 1473 ( La. App. 1st Cir. 419118), 2018 WL 1704095, * 5 ( unpublished).

Constructive notice is defined as the existence of facts which infer actual

knowledge. La. R.S. 9: 2800( D). Mr. Stanley' s affidavit contended that an unnamed

janitor told him that the crack was there for a long time and someone had fallen at

the location before. However, there is nothing in the record that indicates that the

janitor is an employee that has the duty to keep the property in good repair or to

report defects and dangerous conditions to property authorities. Further, there is no

evidence of the existence of facts which would infer actual knowledge. Further,

while the janitor indicated that the crack was there for a " long time," there is no

indication of what period of time he considered to be a long time. Therefore, no

evidence was presented to show how long either condition existed prior to Ms.

Robinson' s accident or whether the School Board was put on notice.

To defeat summary judgment after the School Board presented its evidence

regarding lack of notice, the Robinsons were required to produce factual support

establishing they would be able to satisfy their burden of proving at trial that the

School Board had actual or constructive notice of a defect and failed to remedy the

defect with reasonable diligence. The Robinsons failed to present any such

evidence. The Robinsons' contentions do not in themselves constitute factual

support to establish the required element of either actual or constructive

knowledge. Thus, the School Board is entitled to judgment as a matter of law.

Accordingly, we find that the trial court did not err in granting the School Board' s

motion for summary judgment.

CONCLUSION

For the above and foregoing reasons, the September 6, 2022 judgment of the

trial court granting Pointe Coupee Parish School Board' s motion for summary

judgment and dismissing Susan Robinson' s and Douglass Robinson, III' s claims is

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affirmed. Costs of this appeal, in the amount of $1, 140. 00, are assessed to Susan

Robinson and Douglass Robinson, III.

AFFIRMED.

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