Rochel Latiolais v. Terrebonne Parish Consolidated Government

STATE OF LOUISIANA

Kelm A
' Kel WO 9 V W.
11

FIRST CIRCUIT

2024 CA 0342

ROCHEL LATIOLAIS

VERSUS

Judgment Rendered: 21MME

On Appeal from the 32nd Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Trial Court Docket Number 189247, Div. " E"

Honorable Randall L. Bethancourt, Judge Presiding

Damon J. Baldone Counsel for Plaintiff/Appellant,
Thomas E. Dunn Rochel Latiolais
Jordan M. Gremillion
Houma, Louisiana

Michelle Lyons Neil Counsel for Defendant/Appellee,
Neil D.W. Montgomery Terrebonne Parish Consolidated
Amanda L. Mustin Government
Houma, Louisiana

BEFORE: GUIDRY, C.J., PENZATO AND STROMBERG, JJ.

PENZATO, J.

Plaintiff, Rochel Latiolais, appeals from a judgment granting a motion for

summary judgment in favor of defendant, Terrebonne Parish Consolidated

Government, dismissing Ms. Latiolais' s suit with prejudice. After review, we

affirm.

FACTS AND PROCEDURAL HISTORY

Rochel Latiolais filed suit against Terrebonne Parish Consolidated

Government in August 2020, alleging she sustained personal injuries in a trip and

fall incident at the Terrebonne Parish Library on Liberty Drive in Hourna, Louisiana.

According to the petition, Ms. Latiolais visited the library on August 23, 2019,

discovered the door was locked, and began to walk away from the building when

she " fell on the walkway where it dropped suddenly causing her to lose [ her] balance

and fall face first."

In September 2023, the Parish filed a motion for summary judgment, asserting

Ms. Latiolais could not establish two essential elements of her burden of proof under

La. R.S. 9: 2800 —that the defect in the walkway in front of the library presented an

unreasonable risk of harm and causation. The Parish asserted Ms. Latiolais was not

certain of the exact location of her fall, and she did not look around to see what may

have caused her fall.' The Parish relied on Ms. Latiolais' s deposition, portions of

which were attached to the motion. Ms. Latiolais testified she was walking back to

her truck, and " it just felt like [ she] stepped off a cliff. It' s like [ she] stepped and

there was just air." Ms. Latiolais confirmed she did not trip or slip. After she fell,

she did not notice anything other than cement.

l The Parish' s summary judgment evidence included Ms. Latiolais' s certified medical record,
which reflects that Ms. Latiolais reported she slipped on a rock. However, the Parish did not
contend or seek to establish Ms. Latiolais slipped on a rock. During her deposition, Ms. Latiolais
testified the medical record was inaccurate. Since it is undisputed that Ms. Latiolais did not slip
on a rock, we find this does not create a genuine issue of material fact concerning what caused Ms.
Latiolais' s fall.

Ms. Latiolais described the general area where she fell as concrete with

squares, which reminded her of "individual black tiles, like for decoration." Ms.

Latiolais testified there were " a couple of them that were empty, that were dug out,"

and she was unsure " which one" caused her fall. Photographs attached to Ms.

Latiolais' s deposition, which she identified and discussed, are grainy and of poor

quality but, nevertheless, show what appears to be a path made of brick -sized and

shaped pavers with square- shaped cut- outs at consistent intervals to form a

decorative pattern. The nature of the material within the cut- outs is unclear;

however, Ms. Latiolais referred to it as " pebbles." The square cut- out areas are

darker than the surrounding pavers.

In support of its motion, the Parish also filed the affidavit of claims adjuster,

Jovanna Pillot, who inspected the library premises after Ms. Latiolais reported her

fall. Ms. Pillot attested the " decorative square pavers" ( the cut-outs) had depths

ranging from one half to one -and -one- half inches, and the " deepest ledge" was

immediately recognizable, even from a distance..., as having a surface slightly

lower than the surrounding area." As a claims adjuster with the Parish' s Risk

Management Department, Ms. Pillot' s responsibilities include investigating reports
of injury. Ms. Pillot confirmed in her affidavit the area in question is a " high traffic
area"
located within feet of the library' s front entrance. Ms. Pillot further attested

3

that, prior to Ms. Latiolais' s fall, she had not received any reports or complaints of

injury arising from trips, slips, or falls in the area between the doors and the parking

lot of the library.

Ms. Latiolais opposed the Parish' s motion, eventually filing three

oppositions.' In her first opposition, Ms. Latiolais asserted the Parish had actual or

constructive knowledge the " fill" material in the square cut-outs was " completely

depleted." The first hearing on the Parish' s motion took place in October 2023. The

judgment granting the motion states that Ms. Latiolais' s counsel " was not able to

attend the hearing at the last minute." Ms. Latiolais filed a " motion for rehearing"

requesting the trial court to schedule a rehearing on the Parish' s motion for summary

judgment. As requested, the trial court issued an order setting the Parish' s motion

for rehearing, first to December 8, 2023, then to January 26, 2024.3

On November 27 and December 14, 2023, the trial court granted Ms.

Latiolais' s motions to supplement her opposition to the Parish' s motion for summary
judgment. In these oppositions, Ms. Latiolais again focused on the Parish' s alleged

knowledge of the condition ofthe walkway, relying on Parish emails from May 2019
4
and January 2020. Ms. Latiolais further asserted that her statement contained in the

accident report shows she knew where she fell, contrary to the Parish' s argument.
Ms. Latiolais filed the Parish' s responses to interrogatories and requests for

2 In her first opposition, Ms. Latiolais asserted she sent discovery requests to the Parish in February
2021, but the Parish objected to her requests and refused to produce certain documents, including
statements and an accident report. Ms. Latiolais did not file a motion to compel the Parish' s
discovery responses until October 3, 2023.
3
By resetting the hearing on the Parish' s motion, the trial court granted, ex parte, Ms. Latiolais' s
motion for rehearing. A motion for rehearing is treated as a motion for new trial. See Landry v.
Usie, 2017- 839 ( La. App. 3d Cir. 1. 0/ 18/ 17), 229 So. 3d 1012, 1014; Truitt v. Graco, Inc., 19- 121
La. App. 5th Cir. 11/ 20/ 19), 284 So. 3d 674, 677 n.3. Therefore, the granting of Ms. Latiolais' s
motion for rehearing set aside the original judgment granting the Parish' s motion for summary
judgment. See T.A. v. R. S., 2022- 0847 ( La. App. 1st Cir. 11/ 7/22) 2022 WL 16735125, * 2
unpublished).

4 It appears the Parish supplemented its prior discovery responses, to Ms. Latiolais' s satisfaction,
prior to the scheduled hearing. Thus, the parties' discovery issues were resolved by the time Ms.
Latiolais filed the second supplemental opposition. Ms. Latiolais did not file a motion to continue
the January 26, 2024 hearing or file an affidavit pursuant to La. C. C.P. art. 967( C).

E

production of documents, as well as several unverified, uncertified documents, in

opposition to the Parish' s motion.

In its reply, the Parish objected to most of the exhibits attached to Ms.

Latiolais' s oppositions, namely: the Parish' s responses to Ms. Latiolais' s requests

for production; an unverified copy of the " Initial Claim Set up Form"; an unverified

copy of the " Public Accident Report; an unverified copy of "Recorded Interview for

All Other Accidents" form; unverified letters between Ms. Latiolais' s counsel and

the Parish, with attachments; the Parish' s privilege log; unverified library circulation

records; and unverified emails, photos, and other documents concerning purported

repairs to be made to the library premises. See La. C. C. P. art. 966( A)(4)( a) and

D)( 2).

At the conclusion of the hearing on the Parish' s motion, the trial court

addressed the Parish' s evidentiary objections by noting that La. C. C. P. art. 966 is

very specific," and a document that is not an affidavit, is not certified, and is not

attached to a deposition is not permitted and has no evidentiary value. Without

specifically stating on the record whether it sustained or overruled the objections,

the trial court cited May v. Carson, 2021- 1156 ( La. App. 1st Cir. 8/ 2/ 22), 348 So. 3d

88, 93, writ denied, 2022- 01.394 ( La. 11/ 22/ 22), 350 So. 3d 497, wherein this court

found the trial court abused its discretion in overruling the defendant' s objection to

the plaintiffs unsworn, unverified summary judgment documents, stating, " In

meeting the burden of proof, unsworn or unverified documents, such as letters or

reports, annexed to motions for summary judgment are not self p
- roving and will not

be considered; attaching such documents to a motion for summary judgment does

not transform them into competent summary judgment evidence." The trial court

then granted the Parish' s motion, adopting the Parish' s memorandum in support of

5

its motion as its reasons.' A judgment in accordance with this ruling was signed on

February 8, 2024. Ms. Latiolais then filed this timely appeal.

DISCUSSION

Ms. Latiolais asserts the trial court erred when it ruled that her exhibits were

not in conformity" with La. C.C. P. art. 966( A)(4)( a). On the merits, Ms. Latiolais

asserts the trial court erred when it ruled she could not prove causation, and that " the

defective area was open and obvious."

Summary Judgment Standard and Standard ofReview

The recent amendments to La. C. C. P. art. 966 became effective on August 1,

2023. See 2023 La. Acts, Nos. 317, § 1, and 368, § 1. Since the Parish' s motion

was filed in September 2023, we apply Article 966 as amended.

A ruling on a motion for summary judgment is reviewed under the de novo

standard, with the appellate court using the same criteria that govern the trial court' s

determination of whether summary judgment is appropriate, i.e., whether there is

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

as a matter of law. Corbajal v. Chris Owens French Quarter Parade, LLC, 2024-

00191 ( La. 5/ 21/ 24), 385 So. 3d 236, 237- 8.
The party moving for summary

judgment is not required to negate all essential elements ofthe adverse party' s claim,
action, or defense; instead, the mover must 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).

When a motion for summary judgment is made and supported, an adverse

party may not rest on the mere allegations or denials of her pleadings, but her

response, by affidavits or otherwise, must set forth specific facts showing there is a

Although our review is de novo, we note this court cannot place any real value on the written
reasons drafted entirely by counsel for one of the parties. King v. Allen Court Apartments H, 2015-
0858 ( La. App. 1st Cir. 12/ 23/ 15), 185 So. 3d 835, 839, writ denied, 2016- 0148 ( La. 3/ 14/ 16), 189
So. 3d 1069.

3

genuine issue for trial. La. C. C. P. art. 967( B); Corbajal, 385 So. 3d at 238. Once a

motion for summary judgment has been properly supported by the moving party, the

non-moving party' s failure to produce evidence of a material factual dispute

mandates the granting of the motion. Corbajal, 385 So. 3d at 238.

The applicable substantive law determines materiality, so whether a particular

fact in dispute is material can be seen only in light of the substantive law applicable

to the case. Jefferson v. Nichols State University, 2019- 1137 ( La. App. 1st Cir.

5/ 11/ 20), 311 So. 3d 1083, 1085, writ denied, 2020- 00779 ( La. 11/ 4/ 20), 303 So. 3d

623. Ms. Latiolais' s claim against the Parish is governed by La. R.S. 9: 2800.6 To

prove the Parish is liable for damages caused by a defective thing, Ms. Latiolais must

establish: ( 1) the Parish had custody or ownership of the defective thing; ( 2) the

defect created an unreasonable risk of harm; ( 3) the Parish had actual or constructive

notice of the defect; ( 4) the Parish failed to take corrective action within a reasonable

time; and ( 5) causation. See La. R.S. 9: 2800; La. C. C. arts. 2317 and 2317. 1;

Jefferson, 311 So. 3d at 1085. Failure to meet any one ofthese statutory requirements

will defeat a claim against the Parish. See Jefferson, 311 So. 3d at 1085.

In its motion, the Parish asserted Ms. Latiolais could not satisfy- elements two

and five of her burden of proof, i.e., that an alleged defect on its premises created an

unreasonable risk of harm and caused Ms. Latiolais' s fall. Therefore, Ms. Latiolais' s

focus on the Parish' s purported knowledge of the condition of the cut-outs ( element

three of her burden of proof) is misplaced.

Evidentiary Issues

Louisiana Code of Civil Procedure article 966( D)(2) states, when an

evidentiary objection is made, the court " shall specifically state on the record or in

writing whether the court sustains or overrules the objections raised." Although the

6 The Parish is a public entity pursuant to La. R.S. 9: 28000)(1).

7

trial court did not expressly sustain or overrule the Parish' s objections, we find the

court' s comments regarding the specificity requirements of La. C. C.P. art. 966 and

its citation to May, 348 So. 3d 88 establish the trial court sustained the Parish' s

objections. We review this ruling under the abuse of discretion standard. See May,

348 So. 3d at 93.

The only documents that may be filed or referenced in support of or in

opposition to a motion for judgment are pleadings, memoranda, affidavits,

depositions, answers to interrogatories, certified medical records, certified copies of

public documents or public records, certified copies of insurance policies, authentic

acts, private acts duly acknowledged, promissory notes and assignments thereof,

written stipulations, and admissions. La. C. C.P. art. 966( A)(4)( a). This is an

exclusive list. La. C. C. P. art. 966, Official Comments —2023, Comment ( a).

After reviewing the evidence submitted by Ms. Latiolais, we agree with the

trial court that Ms. Latiolais' s evidence, to which the Parish objected, is not proper

summary judgment evidence. The documents at issue are unsworn and unverified

and cannot be considered. See Lucas v. Maison Ins. Co., 2021- 1401 ( La. App. I st

Cir. 12/ 22/ 22), 358 So. 3d 76, 89. We find no merit in Ms. Latiolais' s argument that

documents, like the accident report, should be considered, because they were

referenced in the Parish' s interrogatory responses. A document that is not within the

exclusive list set forth in La. C. C.P. art. 966( A)(4)( a) does not become proper

summary judgment evidence by being referenced in an interrogatory response or by

being produced in discovery. Instead, such documents are allowed to be filed if they

are properly authenticated by an affidavit or deposition to which they are attached.
Lucas, 358 So. 3d at 90; see La. C. C. P. art. 966, Official Comments — 20151

Comment ( c).

We likewise find no merit in Ms. Latiolais' s argument that the " Public

Accident Report"
is a public record because the Parish, a public entity, labeled the

H-
1

document " public" or because its counsel purportedly certified the document by

certifying" her client' s discovery responses. Pursuant to La. C. C. P. art. 1420, an

attorney' s signature on her client' s discovery responses constitutes a certification

that she read the request, response, or objection and to the best of her knowledge,

information, and belief formed after reasonable inquiry the request, response, or

objection is ( 1) consistent with the rules of discovery and is warranted by existing

law or a good faith argument for the extension, modification, or reversal of existing

law, ( 2) not interposed for any improper purpose, and ( 3) not unreasonable, unduly

burdensome, or expensive. Counsel' s signature on her client' s discovery responses

does not transform an uncertified document into a certified public record in

accordance with La. C. E. art. 901( 7).

Therefore, we consider only those documents filed by Ms. Latiolais in

opposition to the Parish' s motion that fall within the exclusive list set forth in La.

C. C. P. art. 966( A)(4)( a), specifically: the Parish' s July 15, 2021, April 13, 2022, and

October 6, 2023 interrogatory responses.

Unreasonably Dangerous Condition

Although Ms. Latiolais asserts the trial court concluded the complained of

condition was open and obvious, the Parish moved for a determination that the

condition did not present an unreasonable risk of harm. The open and obvious nature

of a condition is just one of several considerations within the risk/utility balancing

test discussed by the Parish and used by Louisiana courts to determine whether a

condition is unreasonably dangerous. See Farrell v. Circle K Stores, Inc., 2022-

00849 ( La. 3/ 17/ 23), 359 So. 3d 467, 474; and Chambers v. Village ofMoreauville,

2011- 898 ( La. 1/ 24/ 12), 85 So. 3d 593, 597- 8 ( applying the risk/utility balancing test

to a cause of action based on La. R.S. 9: 2800). The risk/utility balancing test

considers four pertinent factors: ( 1) the utility of the complained of condition; ( 2)

the likelihood and magnitude of harm, including the obviousness and apparentness

IJ

of the condition (whether it is open and obvious); ( 3) the cost of preventing the harm;

and ( 4) the nature of the plaintiff' s activities in terms of social utility or whether the

activities were dangerous by nature. Farrell, 359 So. 3d at 474. Summary judgment

based on the absence of liability may be granted upon a finding that reasonable

minds could only agree the condition was not unreasonably dangerous. See Farrell,

359 So. 3d at 478 ( holding that whether a condition presented an unreasonable risk

of harm falls within the breach element of the duty/ risk analysis; summary judgment

on the issue of breach may be appropriate, although breach involves a mixed

question of law and fact).

Ms. Latiolais testified she was unsure " which one" of the square cut- outs

caused her fall. Without ruling on whether this is sufficient to create a genuine issue

of material fact as to causation, we find the evidence demonstrates Ms. Latiolais will

be unable to satisfy her burden of proving that an alleged defect on the Parish' s

premises created an unreasonable risk of harm.

Utility of the Complained of Condition

If the condition at issue was " meant to be there," it often will have social utility

and will weigh against a finding that the premises was unsafe. Farrell, 359 So. 3d at

474. Here, Ms. Latiolais testified the square cut- outs appeared to be decorative. Ms.

Pillot referred to them as " decorative square pavers" in her affidavit. Finally, the

photographs confirm the cut- outs were an intentional part of the aesthetic pattern of

the walkway.

Likelihood and Magnitude ofthe Harm, including the Obviousness and
Apparentness of the Condition

The next factor considers the degree to which the condition will likely cause
harm.
A finding that the condition is likely to cause harm weighs in favor of finding
it is unreasonably dangerous. The converse is also true. The magnitude of the harm

factor considers whether the condition presents a risk of great or small injury and the

10

likelihood of each. This factor includes a consideration of the open and obvious

nature of the condition. For a hazard to be considered open and obvious, it must be

one that is open and obvious to all who may encounter it. The open and obvious

concept asks whether the complained of condition would be apparent to any

reasonable person who might encounter it. If so, the reasonable person would avoid

it, and the factor will weigh in favor of finding the condition not unreasonably

dangerous. Farrell, 359 So. 3d at 478.

We cannot determine the precise color difference between the cut-outs and

the surrounding surface from the Parish' s black and white photos. However, as seen

in the images below, there is some color and/ or textural difference between the brick -

shaped pavers and the cut- outs, which are filled with a material different from the

surrounding pavers.

The cut- out square areas are visibly distinct and readily apparent to all who
encounter the walkway. See Bertrand v. Jefferson Arms Apartments, LLC, 2022-

1195 ( La. App. 1st Cir. 4/ 14/ 23), 366 So. 3d 595, 604. Ms. Latiolais offered no

evidence to refute Ms. Pillot' s observation that the cut-out with the " deepest ledge"

was "
immediately recognizable."

11

The photos also show the path is clear and free from obstructions that would

have prevented Ms. Latiolais from seeing the cut-outs.

7A
i

There is no allegation or evidence of an optical illusion or any other reason Ms.

Latiolais was unable to see the square cut-outs. See Williams v. Liberty Mutual Fire

Ins. Co., 2016- 0996 ( La. App. 1st Cir. 3/ 13/ 17), 217 So. 3d 421, 427, writ denied,

2017- 0624 ( La. 6/ 5/ 17), 219 So. 3d 338. Ms. Latiolais likewise did not refute the

Parish' s evidence that no other falls were reported in this high traffic area. Thus,

we find the evidence weighs in favor of finding the condition was unlikely to cause

harm or great injury.

Costo Preventing; the Harm

The record is void of any evidence concerning the cost of preventing the
harm.'
Therefore, we are unable to consider this factor in applying the risk/utility
balancing test. See Farrell, 359 So. 3d at 479.

7
Additionally, the Parish denied having knowledge of any other claims involving the site of Ms.
Latiolais' s fall in its interrogatory responses filed by Ms. Latiolais in opposition to the motion for
summary judgment.

8 The Parish asserts we may take judicial notice of the miles of pavement, sidewalks, and lots it
must maintain. Citing Boyle v. Board of Supervisors, Louisiana State University, 96- 1158 ( La.
1/ 14/ 97),
685 So.2d 1080, 1083 ( noting the cost of repair is not simply the cost of repairing the
single depression in LSU' s sidewalk, but the cost of repairing all similar or worse defects existing
in LSU' s twenty-two or more miles of sidewalks). However, the condition at issue here was a
decorative choice at a single library location and cannot be compared to pavement or sidewalks
spanning throughout the Parish.

12

Nature Plaintiff's Activities

The fourth and final factor of the risk/utility balancing test considers the nature

of the plaintiffs activity in terms of social utility or whether the activities were

dangerous by nature. In this case, Ms. Latiolais was walking from the library

entrance back to her vehicle when she fell. While the social utility of library visit

may be important and is not dangerous in nature, it does not weigh heavily as a

consideration in determining an unreasonably dangerous condition. See Farrell, 359

So3d at 479; Bertrand, 366 So. 3d at 605.

Thus, under the risk/utility balancing, the complained of condition on the

Parish' s premises was not unreasonably dangerous. The Parish satisfied its summary

judgment burden of proving the absence of factual support for one or more elements

of Ms. Latiolais' s burden of proof. See La. R.S. 9: 2800; La. C. C. P. art. 966( D)( 1).

The summary judgment burden then shifted to Ms. Latiolais. Nothing in the Parish' s

interrogatory responses, the only proper summary judgment evidence offered by Ms.

Latiolais, creates a genuine issue of material fact on the issue of whether the

condition of the walkway presented an unreasonable risk of harm or establishes the

Parish is not entitled to summary judgment as a matter of law. See La. C. C. P. art.

966( D)( 1). Consequently, the Parish' s motion for summary judgment was properly
granted.

CONCLUSION

For the foregoing reasons, we affirm the February 8, 2024 judgment granting

the motion for summary judgment filed by Terrebonne Parish Consolidated

Government and dismissing Rochel Latiolais' s suit, with prejudice. All costs of this

appeal are assessed against Rochel Latiolais.

13

STATE OF LOUISIANA

FIRST CIRCUIT

2024 CA 0342

ROCHEL LATIOLAIS

VERSUS

GUIDRY, C. J., concurs and assigns reasons.

GUIDRY, C. J., concurring.

As the plaintiff failed to present suitable evidence establishing the exact

location of the alleged defect she encountered, I agree summary judgment was

properly granted in this case. Though the question of causation is usually an issue

for the factfinder's determination, it is possible to determine this issue on summary

judgment if reasonable minds could not differ. Bruno v. Blue Bayou Water Park,

LLC, 23- 0675, p. 8 ( La. App. 1st Cir. 12/ 29/ 23), 381 So. 3d 802, 810.

Herein, the plaintiffs deposition testimony was the only admissible

summary judgment evidence offered regarding the cause of the accident, and in her

deposition, the plaintiff plainly confessed her lack of certainty regarding the exact

location of her fall. On appeal, the plaintiff points out that her deposition was

taken several years after her accident, but at trial, she asserts that one of the

documents she attempted to submit in opposition to the motion for summary

judgment' could be used to refresh her memory such that she could prove the

element of causation. This assertion by the plaintiff is speculative at best.

Unsupported speculation and mere argument of a possibility do not warrant a

1
The trial court indicated the document was not proper summary judgment evidence. See La.
C. C. P. art. 966( A)(4)( a) ( listing the types of documents that can be filed or referenced in support
or in opposition to a motion for summary judgment).

finding of a genuine issue of material fact. See Bruno, 23- 0675 at p. 8, 381 So. 3d

at 810.

Moreover, the Terrebonne Parish Consolidated Government presented

evidence to establish that the deepest depression in the walkway was one -and -one-

half inches, whereas the plaintiff submitted no countervailing evidence regarding

any height deviations in the walkway. As a matter of law, it has been held that a

pavement deviation of less than two inches does not pose an unreasonable risk of

harm under the risk -utility balancing test. See e. g. Chambers v. Village o

Moreauville, 11- 898, p. 7 ( La. 1/ 24/ 12), 85 So. 3d 593, 598 ( observing " Louisiana

jurisprudence has consistently held that a one -and -one half inch deviation does not

generally present an unreasonable risk of harm.").

As such, I concur in the result reached in this case.