Oscar Mendoza and Carrie Mendoza v. Ace Property and Casualty Insurance Company, the New Orleans Aviation Board, and the City of New Orleans

OSCAR MENDOZA AND * NO. 2024-CA-0604
CARRIE MENDOZA
*
VERSUS COURT OF APPEAL
*
ACE PROPERTY AND FOURTH CIRCUIT
CASUALTY INSURANCE *
COMPANY, THE NEW STATE OF LOUISIANA
ORLEANS AVIATION BOARD, *******
AND THE CITY OF NEW
ORLEANS

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2023-03961, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge
Dale N. Atkins)

George B. Recile
Jeremy N. Gettes
CHEHARDY, SHERMAN, WILLIAMS, RECILE & HAYES, L.L.P.
One Galleria Boulevard, Suite 1100
Metairie, LA 70001

COUNSEL FOR PLAINTIFFS/APPELLANTS, Oscar Mendoza and Carrie
Mendoza

Mindy Brickman
Oscar M. Gwin IV
CHRISTOVICH & KEARNEY, L.L.P.
601 Poydras Street, Suite 2300
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE, ACE Property and Casualty
Insurance Company, and The City of New Orleans by and through the New
Orleans Aviation Board

REVERSED IN PART AND REMANDED; AMENDED IN PART AND
AFFIRMED AS AMENDED
MAY 27, 2025

DNA

PAB

TGC

This civil dispute concerns a fall experienced by the plaintiff, Oscar

Mendoza (“Mr. Mendoza”), while performing his job duties for his employer,

Sodexo, Inc. (“Sodexo”), at the Louis Armstrong New Orleans International

Airport (“Airport”). Appellants are Mr. Mendoza and his wife Carrie Mendoza

(“Mrs. Mendoza”) (collectively the “Mendozas”). They seek review of the trial

court’s July 15, 2024 judgment, which granted the Motion for Summary Judgment

filed by Appellees, ACE Property and Casualty Insurance Company (“ACE”) and

The City of New Orleans (“City”) by and through the New Orleans Aviation Board

(“NOAB”), and dismissed the Mendozas’ claims. The judgment also dismissed the

claims asserted by Sodexo in intervention. For the following reasons, we reverse

the trial court’s judgment insofar as it granted the Motion for Summary Judgment

and dismissed the Mendozas’ claims; and we remand this matter for further

proceedings. Further, we amend the trial court’s judgment to state that the

dismissal of Sodexo’s claims was with prejudice. As amended, we affirm that part

of the judgment.

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FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petition for Damages and Petition of Intervention

On May 3, 2023, the Mendozas filed a Petition for Damages (“Petition”) in

Orleans Parish Civil District Court, wherein they listed ACE, the NOAB, and the

City as defendants (collectively “Defendants”). Therein, the Mendozas explained

that at all times relevant to their Petition, ACE insured the NOAB, the City, and

the Airport.

The Mendozas further explained that on November 21, 2022, Mr. Mendoza

was working at the Airport for Sodexo when he attempted to push a cart stocked

with merchandise and goods up a ramp; tripped and fell on broken and damaged

concrete; and landed “violently,” thereby injuring his left knee and left leg.1 The

Mendozas asserted “that the unmarked and broken concrete ramp created an

unreasonably dangerous condition, causing [Mr. Mendoza] to trip and fall,” and

that “the area in question had inadequate warnings.” The Mendozas also contended

Defendants “had ownership, custody, control, and/or guarde [sic] of the area in

question and created and/or knew or should have known of the unreasonably

dangerous condition in the area,” such that they were “liable . . . pursuant to [La.

C.C.P. arts.] 2316, 2317, 2317.1, and 2322 for [Mr. Mendoza’s] damages.”

In the Petition, Mr. Mendoza asserted claims for past and future medical

expenses; past and future physical pain and suffering; past and future mental pain

and anguish; physical disability; physical disfigurement and scarring; past and

1 As discussed more fully throughout this Opinion, the record demonstrates the highest

part of the ramp was not flush with the landing area leading to the door that Mr. Mendoza was
trying to reach. That is, there was a gap or deviation between the top of the ramp and the landing
area. Mr. Mendoza was trying to push the cart over this gap when his alleged accident occurred.

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future lost wages; loss of earning capacity; and loss of enjoyment of life. Mrs.

Mendoza asserted claims for loss of consortium and loss of services.

On February 7, 2024, Sodexo filed a “Petition of Intervention.” Therein,

Sodexo sought to intervene in the Mendozas’ suit on the basis that it employed Mr.

Mendoza on the date of his alleged accident; had paid workers’ compensation

indemnity and medical benefits to him as a result of his accident; and may be liable

for additional benefits and expenses in the future.

Motion for Summary Judgment

On April 19, 2024, Defendants filed a Motion for Summary Judgment

asserting that they were entitled to summary judgment and dismissal of all of the

Mendozas’ and Sodexo’s claims on the basis of “the open and obvious nature of

the concrete ramp at the . . . Airport upon which . . . [Mr.] Mendoza allegedly

tripped and fell.” Defendants argued “the offending concrete ramp and any

purported imperfections in its condition were an open and obvious condition

admittedly known to Mr. Mendoza, as he routinely traversed the ramp with a

pushcart as part of his job duties with Sodexo,” noting that he used the ramp more

than 100 times in the weeks prior to his alleged accident.2 Further, Defendants

observed Mr. Mendoza’s alleged accident occurred “during daylight hours on a

day with no rain,” such that Mr. Mendoza should have seen the condition of the

ramp on the day of his alleged accident. Defendants contended that “[u]nder

applicable Louisiana law,” they could “have no liability for” such an “open and

obvious condition.”

2 Describing the ramp and its associated building entrance, Defendants explained they

“serve a commercial ingress and egress purpose for vendors and other Airport personnel” and
that the ramp “is not a passenger ramp and is not open to the public.”

3

Mr. Mendoza’s Deposition

In support of their contention that Mr. Mendoza knew about the condition of

the concrete ramp prior to his alleged accident, Defendants attached Mr.

Mendoza’s January 26, 2024 deposition as an exhibit to their Motion for Summary

Judgment. Defendants specifically pointed to the following colloquy from Mr.

Mendoza’s deposition in support of their contention:

Q. On the date of your accident, was that the first time you saw the
sunken concrete or --

A. No.

Q. Were you familiar with it?

A. [I am] familiar with it.

Q. How long had it been like that?

A. A while.

Mr. Mendoza further stated during his deposition that the “sunken concrete” had

been there for at least more than one month before his accident. Defendants also

averred Mr. Mendoza knew about the condition of the ramp because he “routinely

lifted . . . carts so that they cleared the gap” between the top of the ramp and the

landing step, pointing to the following colloquy:

[A.] I was bringing the product upstairs and since it was sunk down, I
tried to lift . . . the cart over the --

Q. Over the lip?

A. Over the lip.

Q. Is that something you had done before?

A. Yes.

Q. Was that necessary to get it over the lip?

A. Yes.

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Q. Had you done it a bunch of times, but not have -- but it worked?

A. Yes.

When asked whether there was another route to take in transporting the

merchandise and goods on the cart, Mr. Mendoza replied, “Not really. [There is] a

loading dock on the other side, but [it is] a big ramp.”

Michelle Wilcut’s Deposition

Defendants also included as an exhibit the 1442 deposition of NOAB

through its corporate representative Michelle Wilcut (“Ms. Wilcut”). Attached as

an exhibit to Ms. Wilcut’s deposition was a photograph of the subject ramp, about

which Defendants admitted “the top of the subject concrete ramp was not flush

with the landing leading to the entrance to the Airport; the landing was slightly

higher than the top of the ramp.” In pertinent part, during her deposition, Ms.

Wilcut explained that the ultimate repair to the subject ramp (which repair

occurred after Mr. Mendoza’s accident) was part of a larger project of concrete

repairs in Concourse C (where the ramp is located), a project which was the result

of a months-long public bid process. Ms. Wilcut explained the NOAB was aware

of the concrete issues in Concourse C by May 20, 2022 (prior to Mr. Mendoza’s

alleged accident), on which date the NOAB issued an invitation to bid. According

to Ms. Wilcut’s deposition, just over six months later, on November 25, 2022 (after

Mr. Mendoza’s alleged accident), the City issued a purchase order for the work,

after which the work could commence.

The following colloquy occurred regarding the timeframe of the public bid

process:

Q. The time frame from the concrete repair project going out
to bid on May 20[], 2022, to the purchase order being issued on

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November 25[], 2022, that six-month time frame, in your experience,
is that typical, is it short, is it long?

A. It is typical for a contract to be a six-month process.

Q. Again, is there anything you could have done or anyone
at the [NOAB] could have done to expedite that process?

A. No.

After Ms. Wilcut testified regarding specific steps taken during the public bid

process, counsel for the Mendozas asked Ms. Wilcut whether “the Aviation Board

[could] have shortcutted this . . . in any way and . . . hired someone or internally

done the concrete repair to this ramp outside of the public bid process,” and she

responded, “No.” According to Ms. Wilcut’s deposition, the NOAB added yellow

warning paint to highlight the defect in the ramp two days after Mr. Mendoza’s

accident. Ms. Wilcut clarified this work did not require the public bidding process

because airport employees were able to perform the work themselves. Ms. Wilcut

estimated the cost of repairing the subject ramp was likely $1,248.06.

An exhibit attached to Ms. Wilcut’s deposition was titled “Personnel

Admitted at Doors Report.” According to that report, Mr. Mendoza used the

subject ramp and associated entrance 102 times between October 27, 2022, and

November 21, 2022, the date of his alleged accident. Defendants pointed to this as

further evidence that Mr. Mendoza knew about the condition of the ramp.

Mrs. Mendoza’s and Sodexo’s Claims

Finally, Defendants contended summary judgment was also appropriate in

their favor regarding Mrs. Mendoza’s claims, which were derivative of Mr.

Mendoza’s meritless claims. Similarly, Defendants asserted summary judgment

was appropriate in their favor regarding Sodexo’s intervention because Sodexo’s

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right to recover was dependent on Mr. Mendoza’s underlying claim having merit,

which Defendants urged it did not.

Opposition to Motion for Summary Judgment

On May 29, 2024, the Mendozas filed an Opposition to Defendants’ Motion

for Summary Judgment. The Mendozas attached to their Opposition Mr.

Mendoza’s May 28, 2024 affidavit, attached to which were a photograph of the

loading ramp and a video of Mr. Mendoza’s alleged accident. In his affidavit, Mr.

Mendoza attested that the attached photograph depicted the area where he fell on

November 21, 2022, and he further attested that the attached video depicted his

fall. The photograph does not show any warnings, such as yellow paint, signs,

cones, or barrels, to indicate the need for caution in the area of the ramp. Of note,

the video is grainy but depicts orange caution barrels in the background; however,

they are not in front of or adjacent to the ramp where Mr. Mendoza fell.

The Mendozas also attached Defendants’ response to an interrogatory as an

exhibit. The interrogatory asked Defendants to “[s]tate the date and time when you

were first made aware or notified of the fact that the area in which [Mr.

Mendoza]’s injuries occurred presented a hazardous condition to invitees,

employees, and patrons on the premises.” Defendants responded they “were

notified on October 22, 2022, of the uneven surface area at 6:29 p.m.”

The Mendozas also attached Mr. Mendoza’s deposition, wherein he testified

that as a result of the subject accident he tore his quadriceps in his left leg and

underwent a surgical repair on January 18, 2023. Mr. Mendoza further explained

that he began physical therapy for this injury in February 2023, with twice-weekly

appointments, and was still going to appointments twice a week at the time of his

January 26, 2024 deposition. Additionally, Mr. Mendoza explained that since the

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accident, he walks with a limp, which is more pronounced when he walks a longer

distance. Mr. Mendoza also listed walking aids he used in connection with his

injury, including a cane, a walker, a brace, and crutches, but explained that he was

no longer using these by the time of his deposition. In terms of additional

restrictions on his activity, Mr. Mendoza stated his physical therapist instructed

him not to pick up anything off of the floor regardless of size; explained that he

cannot carry anything too heavy while walking; and testified he can no longer

perform certain household chores, including cutting the grass and changing bed

sheets, and has difficulty performing other household chores like sweeping and

bathing his dog. Mr. Mendoza also testified the injury prevented him from

participating in certain activities and vacations with his family.

Hearing and July 15, 2024 Judgment

On June 13, 2024, the trial court held a hearing on Defendants’ Motion for

Summary Judgment and, at the conclusion of the hearing, orally granted

Defendants’ Motion for Summary Judgment. In so doing, the trial court stated:

A person who has gone over this for 102 times would seem to be
familiar with it. I know there is a lip here. I know there is a bump
here. I need to take more care. It is open and obvious.

I do not know how [much more] open or how obvious you can
get . . . . And I just find that the nature of the ramp in question was
open and obvious to anyone who would encounter it . . . .

Then, on July 15, 2024, the trial court issued its written judgment, which

states, in pertinent part:

WHEREFORE, IT IS ORDERED, ADJUDGED, AND
DECREED that the Motion for Summary Judgment brought on behalf
of Defendants, The City of New Orleans by and through the New
Orleans Aviation Board and ACE Property and Casualty Insurance
Company is granted dismissing all claims of Plaintiffs Oscar Mendoza
and Carrie Mendoza and Intervenor Sodexo, Inc.

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The trial court also issued written reasons for judgment that same day:

Plaintiffs point to a Louisiana Supreme Court case, Farrell v.
Circle K Stores, Inc., [2022-00849 (La. 3/17/23),] 359 So.3d 467, for
the proposition that a plaintiff’s knowledge of an allegedly hazardous
condition is appropriately considered in assessing fault, but is not
appropriate for summary judgment. Plaintiff argued that the [Farrell]
court stated “whether the plaintiff has knowledge of the condition is
irrelevant in determining whether the thing is defective.”

Plaintiffs argued that the Defendants’ emphasis on plaintiff’s
subjective knowledge of the condition of the ramp is not to be
considered on a motion for summary judgment. Defendants argued
that the ramp runs the full length of a set of commercial double doors
and the uneven pavement condition runs the length of the ramp. This
Court finds that the sunken nature of the ramp in question was open
and obvious to anyone who would encounter it, regardless of the
number of times it was encountered and that Plaintiffs’ claims, as well
as those of Intervenor, should therefore be dismissed.

The Mendozas’ timely appeal followed.

ASSIGNMENT OF ERROR

In their sole assignment of error, the Mendozas assert “[t]he [t]rial [c]ourt

committed legal error in granting Defendants’ Motion for Summary Judgment.”

DISCUSSION

Summary Judgment Principles and Standard of Review

“The summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action . . . .” La. C.C.P. art. 966(A)(2). It

“is favored and shall be construed to accomplish these ends.” Id. A trial court

grants a motion for summary judgment if “[a]fter an opportunity for adequate

discovery,” the mover’s “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).

On a motion for summary judgment, “[t]he burden of proof rests with the

mover.” La. C.C.P. art. 966(D)(1). Specifically, the “party seeking summary

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judgment has the burden of proving there is no genuine issue of material fact.”

Anderson v. Briggs, 2023-0814, 2024-0808, p. 12 (La. App. 4 Cir. 4/25/25), ___

So.3d ___, ___, 2025 WL 1201891, at *6 (quoting Bankers Ins. Co. v. EMIII

Holdings, LLC, 2024-0386, p. 13 (La. App. 4 Cir. 12/16/24), ___ So.3d ___, ___,

2024 WL 5116650, at *6). This Court has previously defined “[a] genuine issue as

. . . a triable issue.” Id. (internal quotation marks omitted). More particularly, “‘an

issue is genuine if reasonable persons could disagree’ about the issue.” Id. (quoting

Bankers Ins. Co., 2024-0386, p. 14, ___ So.3d at ___, 2024 WL 5116650, at *6).

If, however, “‘reasonable persons could reach only one conclusion’ on [an] issue

based on ‘the state of the evidence,’” then “[t]here is no need for a trial on [that]

issue.” Id. (second alteration in original). A fact is material when its “existence or

non-existence may be essential to the plaintiff’s cause of action under the

applicable theory of recovery.” Id. Further, a fact is material when it “potentially

insure[s] or preclude[s] recovery, affect[s] a litigant’s ultimate success, or

determine[s] the outcome of the legal dispute.” Id. (alterations in original). In

“determin[ing] whether ‘a particular disputed fact is material or not,’ the court

must look to ‘the substantive law applicable to the case . . . because the applicable

substantive law determines materiality.’” Id. (second alteration in original).

If the movant proves that there is no genuine issue of material fact, thereby

satisfying the initial burden of proof, at that point “the burden shifts to the party

opposing summary judgment to present factual support sufficient to show he [or

she] will be able to satisfy the evidentiary burden at trial.” Id. at pp. 12-13, ___

So.3d at ___, 2025 WL 1201891, at *6 (quoting Bankers Ins. Co., 2024-0386, p.

14, ___ So.3d at ___, 2024 WL 5116650, at *7). If the party moving for summary

judgment “will not bear the burden of proof at trial on the issue that is before the

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court on the motion for summary judgment,” then “the mover’s burden on the

motion does not require him [or her] 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.” La. C.C.P. art. 966(D)(1). Only once “the motion has been

made and properly supported” does “[t]he burden shift[] from the mover to the

adverse party.” Anderson, 2023-0814, 2024-0808, p. 13, ___ So.3d at ___, 2025

WL 1201891, at *6 (quoting Bankers Ins. Co., 2024-0386, p. 15, ___ So.3d at ___,

2024 WL 5116650, at *7).

When the burden shifts, “the adverse party [must] 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.” La. C.C.P. art. 966(D)(1). To

produce such support, “[the] adverse party may not rest on the mere allegations or

denials of his [or her] pleading, but his [or her] response, by affidavits or as

otherwise provided . . . , must set forth specific facts showing that there is a

genuine issue for trial.” La. C.C.P. art. 967(B). In “consider[ing] a motion for

summary judgment, ‘the trial court cannot make credibility determinations but

must construe reasonable factual inferences in favor of the party opposing the

motion, resolving all doubt in favor of the opponent.’” Anderson, 2023-0814,

2024-0808, p. 13, ___ So.3d at ___, 2025 WL 1201891, at *7 (quoting Bankers

Ins. Co., 2024-0386, p. 15, ___ So.3d at ___, 2024 WL 5116650, at *7). Once the

burden shifts, “summary judgment, if appropriate, shall be rendered against” the

party opposing the motion for summary judgment if that party has failed to “set

forth specific facts showing that there is a genuine issue for trial.” La. C.C.P. art.

967(B). This is because if “the party opposing the motion for summary judgment

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fails to provide factual evidence sufficient to establish that he [or she] will be able

to satisfy his [or her] evidentiary burden of proof at trial, there is no genuine issue

of material fact and summary judgment is appropriate.” Anderson, 2023-0814,

2024-0808, p. 14, ___ So.3d at ___, 2025 WL 1201891, at *7 (alteration in

original) (quoting Bankers Ins. Co., 2024-0386, p. 15, ___ So.3d at ___, 2024 WL

5116650, at *7).

On appeal, appellate courts review a trial court’s ruling on a motion for

summary judgment de novo and utilize “the same criteria that govern the trial

court’s determination of whether summary judgment is appropriate.” Id. (quoting

Bankers Ins. Co., 2024-0386, p. 16, ___ So.3d at ___, 2024 WL 5116650, at *7).

That is, in ascertaining whether summary judgment was appropriate, an appellate

court considers the same questions as the trial court, particularly “whether there is

any genuine issue of material fact, and whether the mover is entitled to judgment

as a matter of law.” Id. With these principles in mind, we consider whether the trial

court properly granted Defendants’ Motion for Summary Judgment.

Liability Against Public Bodies

Louisiana Revised Statutes 9:2800 provides, in pertinent part:3

A. A public entity is responsible under Civil Code Article 2317
for damages caused by the condition of buildings within its care and
custody.

....

C. 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 Civil Code Article 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

3 Louisiana Revised Statutes 9:2800 is titled “Limitation of liability for public bodies.” It

is applicable to the matter sub judice because the Mendozas brought suit against the City and the
NOAB.

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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.

D. Constructive notice shall mean the existence of facts which
infer actual knowledge.

....

G. (1) “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.

In interpreting La. R.S. 9:2800, this Court has outlined the elements a plaintiff

must prove in order to prevail in a claim against a public entity, namely “1) the

public entity’s custody or ownership of the defective thing; 2) the defect created an

unreasonable risk of harm; 3) the public entity’s actual or constructive notice of the

defect and failure to take corrective action within reasonable time; and 4)

causation.” Amedee v. Aimbridge Hospitality, LLC, 2020-0590, p. 5 (La. App. 4

Cir. 12/16/22), 354 So.3d 250, 253 (citing Beteta v. City of New Orleans, 2008-

0542, p. 2 (La. App. 4 Cir. 1/28/09), 4 So.3d 908, 910). A plaintiff’s “failure on

any one” element “is fatal to the case.” Noland v. Lenard, 55,342, p. 6 (La. App. 2

Cir. 11/15/23), 374 So.3d 1133, 1138 (citing Netecke v. State ex rel. DOTD, 1998-

1182, 1197, p. 7 (La. 10/19/99), 747 So.2d 489, 494). As this Court has further

explained, the liability elements a plaintiff must prove in a suit against a public

entity “under La. R.S. 9:2800 are essentially the same as” the elements of proof

required under La. C.C. arts. 2317 and 2317.1. George v. ABC Ins. Co., 2022-

0148, p. 7 (La. App. 4 Cir. 10/26/22), 351 So.3d 447, 453 (citing Lomax v.

Transdev Servs., Inc., 2020-0620, p. 7 (La. App. 4 Cir. 10/20/21), 331 So.3d 368,

373 n.9).

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1. The Public Entity’s Custody or Ownership of the Defective Thing

The first element a plaintiff must prove in order to prevail in a claim against

a public entity is whether the public entity had custody or ownership of the

defective thing. Neither the Mendozas nor Defendants dispute that the NOAB

owned the subject ramp because it was located at the Airport, which is under the

NOAB’s control. Moreover, during Ms. Wilcut’s deposition, she answered

affirmatively when asked, “Would you agree that the [NOAB] had control of the

area where the incident occurred -- had control and maintenance responsibilities as

it relates to where the incident occurred?” Accordingly, we find this liability

element has been satisfied.

2. Whether the Defect Created an Unreasonable Risk of Harm

Next, we must consider whether the ramp created an unreasonable risk of

harm. “Whether a thing presents an unreasonable risk of harm is a matter particular

to the circumstances of each case.” Callier v. Lafayette City-Par. Consolidated

Gov., 2021-598, p. 17 (La. App. 3 Cir. 3/3/22), 351 So.3d 370, 382 (quoting

Morell v. City of Breaux Bridge, 1994-1378, p. 5 (La. App. 3 Cir. 5/31/95), 660

So.2d 882, 884). As this Court recently explained, “[t]he mere presence of a defect

does not alone elevate that defect to the level of an unreasonably dangerous

condition.” Haynes v. Sewerage & Water Bd. of New Orleans, 2023-0678, p. 23

(La. App. 4 Cir. 7/31/24), 399 So.3d 626, 642 (alteration in original) (quoting

Cavet v. ABC Ins. Co., 2020-0454, p. 14 (La. App. 4 Cir. 4/21/21), 316 So.3d 91,

101). Instead, “an unreasonably dangerous condition is present only if the

‘condition or imperfection . . . poses an unreasonable risk of injury to persons

exercising ordinary care and prudence.’” Id. (alteration in original) (quoting Cavet,

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2020-0454, p. 14, 316 So.3d at 102). To determine whether a condition or

imperfection poses an unreasonable risk of harm,

The Louisiana Supreme Court “has adopted a risk-utility balancing
test, wherein the fact-finder must balance the gravity and risk of harm
against individual societal rights and obligations, the social utility of
the thing, and the cost and feasibility of repair.” This risk-utility
balancing test requires consideration of four factors: “[a.] the utility of
the complained-of condition; [b.] the likelihood and magnitude of
harm, including the obviousness and apparentness of the condition;
[c.] the cost of preventing the harm; and [d.] the nature of the
plaintiff’s activities in terms of its social utility or whether it is
dangerous by nature.”

Id. at p. 23, 399 So.3d at 643 (alteration in original) (internal citations omitted).

We address each of these factors in turn.

a. Utility of the Complained-Of Condition

Discussing the first factor, the utility of the complained-of condition, the

Louisiana Supreme Court has held “that if a defect ‘was meant to be there, it often

will have social utility, and in the balancing test, weigh against a finding that the

premises was unsafe.’” Haynes, 2023-0678, pp. 23-24, 399 So.3d at 643 (quoting

Farrell, 2022-00849, p. 7, 359 So.3d at 474). Yet, if “‘[t]he alleged defect was not

intended nor present by design,’ then this weighs against a finding of utility.” Id.

(alteration in original). Here, the ramp itself has utility (providing individuals who

work at the Airport—like Mr. Mendoza—the ability to deliver goods), but there is

no evidence the deviation (i.e., the space between the top of the ramp and the

landing) was intended to be there or present by design, nor do we otherwise find

any usefulness to its presence. Rather, it thwarted those trying to use the ramp for

its intended purpose, i.e., to smoothly load and transport goods. This factor weighs

against Defendants.

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b. Likelihood and Magnitude of the Harm, Including the Obviousness and
Apparentness of the Condition

In Haynes, this Court provided the following summary of this factor:

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.

Rainey v. Knight, 2023-0133, p. 8 (La. App. 1 Cir. 11/3/23), 378
So.3d 116, 124. Additionally, the risk-utility balancing test includes
consideration of the obviousness and apparentness of the condition
because Louisiana jurisprudence has previously held that “a defendant
generally does not have a duty to protect against an open and obvious
hazard.” George v. ABC Ins. Co., 2022-0148, p. 8 (La. App. 4 Cir.
10/26/22), 351 So.3d 447, 454 (citing Scarberry v. Entergy Corp.,
2013-0214, p. 10 (La. App. 4 Cir. 2/19/14), 136 So.3d 194, 204). For
a defendant to not have a duty to protect, the hazard must “be one that
is open and obvious to all, i.e., everyone who may potentially
encounter it.” Id. at p. 9, 351 So.3d at 454. The open and obvious
inquiry “focuses on the global knowledge of everyone who encounters
the defective thing or dangerous condition, not the victim’s actual or
potentially ascertainable knowledge.” Id. at p. 9, 351 So.3d at 454-55
(quoting Hooper v. Brown, 2015-0339, p. 9 (La. App. 4 Cir. 5/22/15),
171 So.3d 995, 1001). That is, a plaintiff’s knowledge about a defect
“is not necessarily conclusive that the defective condition was open
and obvious to all who encountered it.” Id. at p. 10, 351 So.3d at 455
(citing Romain v. Brooks Restaurants, Inc., 2020-0243, p. 5 (La. App.
4 Cir. 11/18/20), 311 So.3d 428, 432).

In discussing the open and obviousness inquiry, however, the
Louisiana Supreme Court has recently described it as a “figment of
judicial imagination” and more narrowly held that “[t]here is, with
limited exception, the duty to exercise reasonable care and to keep that
which is within our custody free from an unreasonable risk of harm.”
Farrell, 2022-00849, p. 8, 13, 359 So.3d at 475, 478 (emphasis
added). In fact, the Louisiana Supreme Court even stated that “it is
inaccurate to profess that a defendant generally does not have a duty
to protect against an open an[d] obvious condition” because this
inquiry “falls within the ambit of the second factor of the risk/utility
balancing test, which considers the likelihood and magnitude of the
harm, and it is not a consideration for determining the legal question
of the existence of a duty.” Id. at pp. 12-13, 359 So.3d at 478.

16

2023-0678, pp. 24-25, 399 So.3d at 643-44 (alterations in original).

Defendants contend this case is analogous to sidewalk defect cases. Because

there are not many ramp-specific cases and this case involves a defect in a portion

of concrete like the sidewalk cases, we find the reasoning in sidewalk defect cases

to be helpful and analogous. See generally Guilbeaux v. LUPO Enters., L.L.C.,

2021-0053 (La. App. 4 Cir. 5/19/21), 321 So.3d 447 (wherein this Court included

sidewalk defect cases in its analysis of a deviation in an expansion joint located at

the entrance/exit ramp of a grocery store). “[N]ot every crack in a sidewalk results

in liability.” Joseph v. City of New Orleans, 2002-1996, p. 6 (La. App. 4 Cir.

3/5/03), 842 So.2d 420, 424 (citations omitted). As the Louisiana Supreme Court

has stated, there is no fixed rule in deciding whether a defect in a sidewalk is

unreasonably dangerous. Chambers v. Vill. of Moreauville, 2011-898, p. 5 (La.

1/24/12), 85 So.3d 593, 598. However, “[o]ne consideration that” the Louisiana

Courts of Appeal and the Louisiana Supreme Court have “addressed in [the] risk-

utility balancing test [is] the size of the sidewalk deviation.” Brown v. City of

Shreveport, 50,402, p. 4 (La. App. 2 Cir. 3/16/16), 188 So.3d 341, 345 (citing

Chambers, 2011-898, p. 6, 85 So.3d at 598). Even when a “cracked area of the

sidewalk was not hidden and could have been avoided if noticed by the plaintiff,”

if “the cracked portion of the sidewalk encountered by [the] plaintiff was elevated

enough,” then this can “cause a hazard,” especially if the view of the cracked

portion is diminished for some reason. Garcie v. Pasquier, 46,208, pp. 6-7 (La.

App. 2 Cir. 5/18/11), 70 So.3d 11, 15. That is, the height of the raised portion or

separation informs whether the defect presented an unreasonable risk of harm. In

fact, the Louisiana Supreme Court has instructed that “[t]he size of a deviation is a

17

necessary consideration in determining the risk of harm created by a sidewalk

defect.” Chambers, 2011-898, p. 6, 85 So.3d at 598 (emphasis added).

Recently, in cases involving a deviation of fewer than two inches, the courts

have held this represents a trip hazard but not an unreasonable risk of harm. See

Chambers, 2011-898, p. 6, 85 So.3d at 598 (holding “the one-and-one-quarter to

one-and-one-half inch ledge [was] relatively small” and that the small size of the

ledge, among other reasons, did not result in an unreasonable risk of harm);

Guilbeaux, 2021-0053, p. 10, 321 So.3d at 454 (holding “[a] deviation in an

expansion joint of ¾ of an inch constitutes a ‘minor’ deviation in [a] ramp;

therefore, it does not present an unreasonable risk of harm”); Graham v. City of

Shreveport, 44,994, p. 8 (La. App. 2 Cir. 1/27/10), 31 So.3d 526, 532 (finding no

unreasonable risk of harm regarding a raised portion of concrete slab of less than

two inches) (citation omitted); Boyle v. Bd. of Supervisors, La. State Univ., 1996-

1158, pp. 4, 7 (La. 1/14/97), 685 So.2d 1080, 1083-84 (wherein the trial court

found a depression in a sidewalk “to be anywhere from one-half inch to one inch or

more,” and the Louisiana Supreme Court held this did not present an unreasonable

risk of harm).

By contrast, in cases involving a separation of at least two inches or greater,

the courts have upheld a trial court’s determination that this presented an

unreasonable risk of harm. See Brown, 50,402, pp. 5-6, 188 So.3d at 345-46

(wherein the “trial court accepted the circumstantial evidence tending to indicate

the sidewalk deviation was at least two inches,” and the Louisiana Second Circuit

Court of Appeal found no “manifest error in the trial court’s finding that this

particular defect created an unreasonable risk of harm”); Joseph, 2002-1996, p. 6,

842 So.2d at 424-25 (holding the trial court was not manifestly erroneous “in

18

finding the sidewalk defect at issue in this case, which [was] over three inches in

size, created an unreasonable risk of harm”); Butkiewicz v. Evans, 2006-236, p. 7

(La. App. 5 Cir. 9/26/06), 943 So.2d 509, 514 (finding no error in the trial court’s

determination that a three-inch deviation created an unreasonable risk of harm).

The summary judgment evidence established Mr. Mendoza knew about the

height differential between the top of the ramp and the landing—he admitted as

much during his deposition. However, Mr. Mendoza’s knowledge of the defect

was not enough to make it “open and obvious” such that Defendants did not owe

him a duty. Instead, the defective condition needed to be open and obvious to

anyone who encountered it. The summary judgment evidence did not establish the

size of the height differential between the top of the ramp and the landing step. As

stated previously, the Louisiana Supreme Court has stated, “the size of a deviation

is a necessary consideration in determining the risk of harm created by a sidewalk

defect.” Chambers, 2011-898, p. 6, 85 So.3d at 598 (emphasis added). Therefore,

without information (whether direct or circumstantial evidence) about the size of

this deviation, we do not have what is necessary to determine whether the

deviation constituted an unreasonable risk of harm. Because Defendants did not

provide such information in their Motion for Summary Judgment, they failed to

prove there is no genuine issue of material fact regarding this factor in the risk-

utility balancing test. Without this information, this Court cannot determine

whether the height difference was likely to cause harm and whether it would have

been open and obvious to anyone who encountered it, not just Mr. Mendoza.

Moreover, even though the ramp’s deviation “was not hidden and could

have been avoided if noticed by” Mr. Mendoza, if “the cracked portion of the

[concrete] . . . was elevated enough,” then this would have constituted “a hazard,”

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especially because Mr. Mendoza’s view—and that of other similarly situated

workers—would likely be blocked by the goods they were delivering. Garcie,

46,208, pp. 6-7, 70 So.3d at 15. We find there remains a genuine issue of material

fact about whether the height of the deviation rendered it an unreasonably

dangerous condition. Mr. Mendoza’s knowledge about the defect in the ramp

cannot serve as a basis to dismiss his claims on summary judgment per Farrell.

Rather, it should only come into play in the ultimate allocation of fault. See

Farrell, 2022-00849, pp. 13-14, 359 So.3d at 478 (holding that a “plaintiff’s

knowledge is appropriately considered in assessing fault, but is not appropriate for

summary judgment proceedings”).

c. Cost of Preventing the Harm

Next, we must balance the risk of harm presented against the cost and

feasibility of repair. The summary judgment evidence established that the ultimate

cost of repairing the subject ramp was likely $1,248.06 per Ms. Wilcut’s

deposition. Considering the resources of the airport and the injuries suffered by

Mr. Mendoza, this is not an unreasonable amount for the NOAB to have spent to

repair the ramp, such that this factor weighs against Defendants.

Though, as discussed more fully below, the ramp repair occurred as part of a

larger, more expensive concrete repair project in Concourse C, it is not as if

Defendants contended or established that there were multiple such ramps requiring

like repairs, such that repairing all of them would become cost prohibitive. Instead,

the ramp repair ultimately occurred as part of a project that the NOAB was already

undertaking anyway. For example, in LeBlanc v. City of Abbeville, the City

“argue[d] that since it has thousands of storm grates in place as part of its drainage

system, the cost to replace each one at any showing of rust would be cost

20

prohibitive.” 2018-206, p. 9 (La. App. 3 Cir. 10/17/18), 259 So.3d 372, 384. The

trial court and the Louisiana Third Circuit Court of Appeal countered, “it [was] not

necessary for all of the storm grates to be replaced as soon as they beg[a]n to

exhibit signs of rust.” Id. Instead, “the City had a duty to replace this particular

storm grate [through which the plaintiff fell and injured his leg] when it became, or

should have become in the exercise of reasonable care, obvious that it needed to be

replaced.” Id.

Likewise, the NOAB had a duty to replace this particular ramp when it

became, or should have become in the exercise of reasonable care, obvious that it

needed to be replaced. It is clear from the picture of the ramp in the summary

judgment evidence that the concrete of the ramp was compromised. Thus, the

NOAB failed to take the relatively inexpensive precaution of repairing this

particular ramp. We acknowledge, however, that the summary judgment evidence

establishes the NOAB could not immediately repair this ramp for a reason other

than cost—Ms. Wilcut testified about the months-long public bid process. We note

that during the public bid process, the NOAB could have taken other steps that

were inexpensive and did not require the public bid process, such as painting the

deviation yellow; placing warning signs, cones, or barrels to alert workers to the

state of the ramp; or closing the ramp entirely and requiring Airport workers to use

an alternate route. Yet, the NOAB did not do anything like this until after Mr.

Mendoza’s accident. Accordingly, we find this factor weighs against Defendants in

the risk-utility balancing test.

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d. Nature of Plaintiff’s Activities in Terms of Social Utility or Whether the
Activities Were Dangerous by Nature

The fourth and final factor of the risk/utility balancing test involves a

consideration of the nature of the plaintiff’s activity in terms of social utility or

whether the activities were dangerous by nature. In this case, Mr. Mendoza was

transporting goods for consumers from one section of the Airport to another, which

activity was a task required by his employment with Sodexo. This activity had

social utility and was not dangerous by nature.

After applying the risk/utility balancing test, we conclude Defendants failed

to prove there was no genuine issue of material fact as to whether the condition of

the ramp created an unreasonable risk of harm. Next, we turn to the third element

of a custodial negligence claim.

3. Whether Defendants Had Actual or Constructive Notice and Failed to Take
Corrective Action within Reasonable Time

The third custodial negligence element is whether Defendants had actual or

constructive knowledge of the defect and whether they failed to take corrective

action within a reasonable time. In their response to an interrogatory, which the

Mendozas attached as an exhibit to their Opposition, Defendants admitted that they

knew about the condition of the concrete in the subject area on October 22, 2022,

which was about one month before Mr. Mendoza’s alleged accident. Accordingly,

the summary judgment evidence established Defendants had actual notice of the

defect in the ramp. We must determine whether they failed to take corrective

action within a reasonable time, i.e., whether one month was a sufficient amount of

time for repair.

During Ms. Wilcut’s deposition, she explained that the ultimate repair to the

subject ramp was part of a larger project of concrete repairs, which was the result

22

of a months-long public bid process. Accordingly, based on Ms. Wilcut’s

deposition, the NOAB likely could not have repaired the subject ramp between

October 22, 2022 (upon learning of the state of the ramp), and November 21, 2022

(the date of Mr. Mendoza’s accident).

However, according to Ms. Wilcut’s deposition, the NOAB added yellow

warning paint to highlight the defect in the ramp only two days after Mr.

Mendoza’s accident. She clarified this work did not require the public bidding

process because airport employees were able to perform the work themselves.

Accordingly, as discussed previously, even though the repair work likely could not

have occurred within the one-month time period, the warning paint could have

been added or other precautions could have been taken during the one-month time

period. We find that one month was a reasonable amount of time within which to

take the corrective action of adding a warning about the condition of the ramp.

4. Causation

The fourth and final custodial negligence element is causation, i.e., whether

the defect caused the plaintiff’s damages. In opposing Defendants’ Motion for

Summary Judgment, the Mendozas did not offer any medical records or other

evidence from Mr. Mendoza’s treating physicians about the injuries he allegedly

sustained; but they did offer his deposition testimony. Mr. Mendoza testified that

during his accident, he tore his quadriceps in his left leg; subsequently underwent

surgery to repair the tear; and was still attending physical therapy appointments

twice a week at the time of his deposition. Additionally, Mr. Mendoza explained

that since the accident, he walks with a limp; received restrictions on his activity

from his physical therapist; cannot perform certain household chores and has

difficulty performing other household chores; and could not participate in activities

23

with his family. Defendants presented no evidence in conjunction with their

Motion for Summary Judgment to refute Mr. Mendoza’s testimony.

In light of the foregoing analysis, we find there is a genuine issue of material

fact regarding whether the defective ramp was an unreasonable risk of harm, such

that the trial court should not have granted Defendants’ Motion for Summary

Judgment.

Whether Mrs. Mendoza’s Claims and the Mendozas’ Claims against ACE
Were Appealed and Are Subject to Reconsideration

In the final argument, Defendants contend Mrs. Mendoza’s loss of

consortium claims and the Mendozas’ claims against ACE were not appealed and

are not subject to consideration by this Court. In particular, they argue:

While Plaintiffs-Appellants[’] instant appeal is styled as being brought
by both Oscar and Carrie Mendoza, the dismissal of Carrie Mendoza’s
loss of consortium claim is not briefed as an assignment of error or
issue presented for review in the Plaintiffs-Appellants’ instant appeal,
as would be required by Uniform Rule of Louisiana Courts of Appeal
2-12.4(A)(5)-(6). Thus, it is not subject to review or reversal herein.
The Trial Court’s dismissal of this claim is final and conclusive.
Likewise, the dismissal of Plaintiffs-Appellants’ claim against ACE
was not briefed as an assignment of error or issue presented for
review, and is thus not reviewable or reversible herein, and is a final
and conclusive judgment.

We disagree with this argument. As Defendants correctly observe in their brief,

Mrs. Mendoza’s claim for loss of consortium damages is a derivative claim

because it derives from the personal injuries sustained by the primary victim, Mr.

Mendoza. Ferrell v. Fireman’s Fund Ins. Co., 1996-3028, p. 11 (La. 7/1/97), 696

So.2d 569, 576. Defendants’ Motion for Summary Judgment concerned whether

the NOAB and the City had liability for Mr. Mendoza’s accident. The subject

judgment dismissed both Mr. Mendoza’s and Mrs. Mendoza’s claims on the basis

the NOAB and the City did not have liability for Mr. Mendoza’s accident; and both

24

Mr. and Mrs. Mendoza seek reversal of the entire grant of summary judgment, i.e.,

reversal of the dismissal of both of their claims. Whether the NOAB and the City

have liability for Mr. Mendoza’s accident is a threshold issue for the trier of fact to

determine before even considering whether either of the Mendozas is entitled to

damages and, if so, to how much each is entitled. Because Mrs. Mendoza’s claim

for loss of consortium damages derives from Mr. Mendoza’s claims, Mrs.

Mendoza’s argument as to why the NOAB and the City are liable—the ramp

constituted an unreasonable risk of harm—is the same as Mr. Mendoza’s

argument. Thus, while Mrs. Mendoza brought this appeal along with Mr.

Mendoza, there was no need for her to separately brief the liability issue because

doing so would have been repetitive. Rather, the heart of Mrs. Mendoza’s claim

and the manner in which her claim is distinct from Mr. Mendoza’s is the amount to

which she may be entitled to damages; and, to discuss her damages at this point (or

even Mr. Mendoza’s) would have been premature given that the dispute at this

phase of the proceedings was concerning the preliminary issue of liability.

Moreover, Defendants cite to Rule 2-12.4 of the Uniform Rules of the

Courts of Appeal as support for their contention that Mrs. Mendoza’s claim is not

subject to review or reversal in this appeal. However, Uniform Rule 2-12.4(B)(4)

states, “All assignments of error and issues for review shall be briefed. The court

may deem as abandoned any assignment of error or issue for review which has not

been briefed.” (Emphasis added.) As this Court recently stated, “the Louisiana

Supreme Court has explained, a ‘cardinal rule of statutory interpretation [is] that

the word “may” is permissive.’” Benjamin Pri-Tal v. Progressive Prop. Ins. Co.,

2024-0531, p. 8 (La. App. 4 Cir. 5/14/25), ___ So.3d ___, ___, 2025 WL 1414743,

at *4 (quoting Pierce Founds., Inc. v. Jaroy Constr., Inc., 2015-0785, p. 8 (La.

25

5/3/16), 190 So.3d 298, 304). Because Rule 2-12.4(B)(4) uses the permissive

language “may,” whether to consider an issue abandoned is up to the discretion of

this Court. Thus, not only do we find Defendants’ characterization of the

Mendozas’ brief to be inaccurate, even if the Mendozas had failed to brief Mrs.

Mendoza’s claim, we retain the discretion to review it anyway.

Similarly, we disagree with Defendants’ arguments as to ACE. Again, the

Motion for Summary Judgment concerned whether the NOAB and the City had

liability for Mr. Mendoza’s accident. The subject judgment dismissed both Mr. and

Mrs. Mendoza’s claims on the basis the NOAB and the City did not have liability

for Mr. Mendoza’s accident, a finding which rendered ACE—as insurer—not

responsible for paying any damages to the Mendozas. Essentially, ACE’s role in

this litigation is analogous to Mrs. Mendoza’s derivative claim: ACE’s

responsibility for paying damages only comes into play if the NOAB and the City

are first deemed liable. Now that we have determined there is a genuine issue of

material fact that precluded summary judgment on the issue of liability, the trier of

fact may yet determine that the NOAB and the City had liability for Mr.

Mendoza’s accident, in which case ACE would be responsible for paying any

damages awarded to Mr. Mendoza and to Mrs. Mendoza. The Mendozas did not

need to separately brief their claim against ACE because the summary judgment

and this appeal were focused on the threshold issue of whether the ramp

constituted an unreasonable risk of harm, such that the NOAB and the City should

or should not be held liable. Had ACE filed its own motion for summary judgment

or had the trial court dismissed the Mendozas’ claims against ACE for other

reasons, the result may be different in that the Mendozas may have needed to brief

their claim against ACE. However, the trial court dismissed the Mendozas’ claims

26

against ACE for the same reasons it dismissed the Mendozas’ claims against the

NOAB and the City, i.e., after finding the ramp did not constitute an unreasonable

risk of harm because it was open and obvious, such that the NOAB and the City

were not liable for Mr. Mendoza’s accident. In sum, we find no merit to

Defendants’ argument regarding Mrs. Mendoza’s claim and the Mendozas’ claims

against ACE.

Sodexo

Though neither the Mendozas nor the Defendants discussed this in their

respective briefs, we address another issue: Sodexo did not join the Mendozas’

appeal or separately appeal the trial court’s judgment. Having found that there

remains a genuine issue of material fact and that the trial court should not have

granted Defendants’ Motion for Summary Judgment, we must determine whether

our holding also applies to Sodexo. If an intervenor does not appeal a trial court’s

judgment dismissing its claim, then that judgment becomes final as to the

intervenor. Veazey v. Avoyelles Par., 476 So.2d 1057, 1060 (La. App. 3d Cir.

1985) (citations omitted). See also Johnson v. Sandifer, 56 So.2d 762, 766 (La.

App. 2d Cir. 1952) (explaining that the “[i]ntervenor’s . . . failure to appeal . . . has

. . . concluded the legal controversy as far as she is concerned”). In light of the

foregoing jurisprudence, we find the trial court’s July 15, 2024 judgment is final as

to Sodexo.

Failure to Specify Whether the Dismissal was With or Without Prejudice

Before concluding this Opinion, we must address another matter. The trial

court’s July 15, 2024 judgment dismissed the Mendozas’ and Sodexo’s claims but

did not specify whether the dismissal was with or without prejudice. As this Court

has explained, “a summary judgment is, by nature, a dismissal with prejudice.”

27

Jones v. Whips Electric, LLC., 2023-0357, pp. 6-7 (La. App. 4 Cir. 11/15/23), 377

So.3d 788, 793-94 (citing Vega v. Wal-Mart Stores, Inc., 2003-2239, pp. 2-3 (La.

App. 1 Cir. 9/17/04), 888 So.2d 242, 243). This is because a summary judgment

constitutes “the procedural equivalent of a trial and is an adjudication of the claim

on the merits.” Id. at p. 6, 377 So.3d at 793 n.9 (citation omitted). “By its nature

the granting of summary judgment indicates that there is nothing left to determine

and the law requires judgment be entered for one party.” Id. at p. 7, 377 So.3d at

794 (quoting Vega, 2003-2239, p. 3, 377 So.3d at 794). Thus, the trial court’s grant

of Defendants’ Motion for Summary Judgment was, by its very nature, a dismissal

with prejudice.

If a trial court grants a summary judgment, dismisses the underlying claims

without prejudice, and the appellate court disagrees with the grant of summary

judgment, then the appellate court need not amend the trial court judgment in light

of the appellate court’s decision to reverse and remand the matter. See Jones, 2023-

0357, p. 7, 377 So.3d at 794. The situation in the matter sub judice is not the exact

same as in Jones wherein the trial court dismissed the claims without prejudice,

whereas here the trial court did not specify whether the dismissal was with or

without prejudice. Nonetheless, we find Jones to be analogous and proceed with

the same course of action. Because we find there remained genuine issues of

material fact, we reverse the trial court’s July 15, 2024 judgment insofar as it

granted Defendants’ Motion for Summary Judgment and dismissed the Mendozas’

claims. In light of our reversal and remand, there is no need for this Court or the

trial court to amend the judgment with regard to the Mendoza’s claims.

If, however, a trial court grants a summary judgment, dismisses the

underlying claims without prejudice, and the appellate court agrees with the grant

28

of summary judgment, then the appellate court should affirm but amend the

judgment to reflect that the claims were dismissed with prejudice. See Estate of

Blankenship v. La. Home Care Grp., Inc., 49,856, p. 6 (La. App. 2 Cir. 6/24/15),

166 So.3d 461, 464-65 (quoting Jackson v. State Farm Mut. Auto. Ins. Co., 27,611,

pp. 4-5 (La. App. 2 Cir. 12/6/95), 665 So.2d 661, 664). Again, the present situation

is not the exact same as in Estate of Blankenship wherein the Louisiana Second

Circuit Court of Appeal agreed with the grant of summary judgment, whereas here

we disagree with the grant of summary judgment. However, we find Estate of

Blankenship to be analogous and proceed with the same course of action. Because

we have concluded the trial court’s July 15, 2024 judgment is final as to Sodexo in

light of Sodexo’s failure to appeal, we amend the judgment to state that the trial

court’s dismissal of Sodexo’s claim was with prejudice. As amended, we affirm

that part of the judgment.

DECREE

For the foregoing reasons, we reverse the trial court’s July 15, 2024

judgment insofar as it granted Defendants’ Motion for Summary Judgment and

dismissed the Mendozas’ claims; and we remand this matter for further

proceedings. Insofar as the July 15, 2024 judgment granted Defendants’ Motion for

Summary Judgment and dismissed Sodexo’s claims, we amend that part of the

judgment to specify that the dismissal was with prejudice. As amended, we affirm

that part of the judgment.

REVERSED IN PART AND REMANDED; AMENDED IN PART AND
AFFIRMED AS AMENDED

29