Holly Dunn v. Board of Commissioners of the Port of New Orleans and Ports America Louisiana, LLC

HOLLY DUNN * NO. 2025-CA-0201

VERSUS *
COURT OF APPEAL
BOARD OF COMMISSIONERS *
OF THE PORT OF NEW FOURTH CIRCUIT
ORLEANS AND PORTS *
AMERICA LOUISIANA, LLC STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-07983, DIVISION “J”
Honorable D. Nicole Sheppard,
******
Judge Joy Cossich Lobrano
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(Court composed of Judge Joy Cossich Lobrano, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

Thomas W. Shlosman, Esq.
SHLOSMAN LAW FIRM
4907 Magazine Street
New Orleans, LA 70115

COUNSEL FOR PLAINTIFF/APPELLANT

Andre J. Mouledoux
Katie L. Gonsoulin
MOULEDOUX, BLAND, LEGRAND & BRACKETT
701 Poydras Street
Suite 4250
New Orleans, LA 70139

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED

DECEMBER 3, 2025

JCL This appeal arises from a judgment of the Civil District Court for the Parish

TGC of Orleans granting summary judgment in favor of defendant-appellee, the Board

DNA of Commissioners of the Port of New Orleans (“the Port”), dismissing the claims

of plaintiff-appellant, Holly Dunn, for injuries she sustained on an escalator at the

Erato Street Cruise Terminal. For the following reasons, we reverse.

On November 17, 2018, Dunn and her fiancé, Alan Moon, were boarding a

Carnival Cruise Line vessel via the Erato Street Cruise Terminal. While ascending

the terminal escalator, Moon’s pant leg was allegedly caught by a protruding wire

or rod, causing him to fall backward onto Dunn, who also fell and sustained

injuries.

Dunn filed suit against the Port, which owns the escalator, as well as

ThyssenKrupp Elevator Corporation (“ThyssenKrupp”), the escalator’s

manufacturer and maintenance contractor, and Concord Shore Services

(“Concord”), a Carnival contractor responsible for passenger movement. She

alleged negligence and strict liability.

The Port moved for summary judgment, asserting it lacked actual or

constructive notice of any defect under La. R.S. 9:2800, and maintenance

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responsibilities rested solely with contractors. The district court granted the

motion, finding the Port lacked notice. This appeal timely follows.

Appellate courts review summary judgments de novo, applying the same

standard as the trial court. Reynolds v. Select Properties, Ltd., 634 So.2d 1180,

1182-83 (La. 1994). Summary judgment is appropriate only where there is no

genuine issue of material fact and the mover is entitled to judgment as a matter of

law. La. C.C.P. art. 966.

A public entity’s liability for defective things within its custody is governed

by La. R.S. 9:2800 and La. C.C. arts. 2317.1 and 2322. Under any of these theories

of recovery, a plaintiff must prove by a preponderance of the evidence that: (1) the

entity owned or had custody of the thing which caused the damage; (2) the thing

was defective due to a condition creating an unreasonable risk of harm; (3) the

entity had actual or constructive notice of the condition yet failed to take corrective

action within a reasonable period of time; and (4) the defect was a cause of the

plaintiff’s harm. George v. ABC Ins. Co., 22-0148, p. 6 (La. App. 4 Cir. 10/26/22),

351 So.3d 447, 453 (citations omitted).

Constructive notice under La. R.S. 9:2800(D) means the existence of facts

which infer actual knowledge. Courts have held that constructive notice may be

shown where a condition existed for such a period of time that, through the

exercise of ordinary care and diligence, it would have been discovered. See, e.g.,

Flenner v. Sewerage & Water Bd. of New Orleans, 12-0829, p. 5 (La. App. 4 Cir.

3/4/13), 110 So.3d 661, 665; LeBlanc v. City of Abbeville, 18-206, p. 12 (La. App.

3 Cir. 10/17/18), 259 So.3d 372, 386; Clark v. East Baton Rouge Parish Dep’t of

Public Works, 17-1445, p. 7 (La. App. 1 Cir. 4/6/18), 248 So.3d 409, 414; Minor v.

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Red River Parish Police Jury, 54,182, p. 8 (La. App. 2 Cir. 1/12/22), 333 So.3d

549, 554.

The Port’s lack of notice argument rests largely on the absence of passenger

complaints, Concord reports, or ThyssenKrupp maintenance records identifying a

protruding wire prior to Dunn’s fall. While the Port may ultimately prevail at trial,

the record on summary judgment reveals several genuine issues of material fact.

First, John Robinson, a traveling companion, testified he observed a six-inch

green wire protruding from the escalator’s brush guard immediately after the fall.

If credited, this establishes a hazardous condition. The Port relies on the testimony

of Charles Overton, a ThyssenKrupp mechanic, who stated that no component of

the escalator would extend in the manner Robinson described. That testimony,

however, merely creates a factual dispute. The Port’s Statement of Uncontested

Material Facts does not identify as an uncontested fact that the wire was not part of

the escalator assembly, and the conflicting testimony cannot be resolved at the

summary judgment stage. Whether the object was a component part or a foreign

object is disputed and cannot be resolved on summary judgment.

Second, the record contains evidence of industry standards requiring daily

visual inspections before startup. Plaintiff submitted deposition testimony and

documentation showing that ASME Code § 8.6.10.5 calls for daily visual

inspections of skirt panels and brush guards.1 Milton Haynes, the Port’s

maintenance foreman, admitted he never performed these inspections and had not

been trained to do so.
1 Section 8.6.10.5 of the ASME Code prescribes that an escalator owner, or the person(s)

authorized by the owner, shall perform certain startup inspections and tests prior to starting the
unit, including “[v]isually examin[ing] the skirt or dynamic skirt panels.” Dunn contends that
Section 8.6.10.5 and deposition testimony submitted by her in opposition to the motion for
summary judgment established that the Port had a duty to visually inspect the escalator brush
guards before starting the escalator.

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Industry standards are relevant to determining the existence of a duty.

Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180-81 (5th Cir.

1975) (industry manuals admissible to establish standard of care); Falgout v.

Higbee Lancoms, LP, CA No. 50-27, 2020 WL 7364482, at *6 (E.D. La. Dec. 15,

2020) (“industry standards should bear on defining [the owner’s] duty”). Applying

these authorities, ASME Code § 8.6.10.5 is appropriately considered when

assessing whether the Port owed a duty to visually inspect its escalator prior to

startup.

Chad Waldrup, the Account Manager for ThyssenKrupp, testified that under

Section 8.6.10.5 of the ASME Code, it is best practice that an operator inspect an

escalator prior to turning it on. He further testified that under the ASME Code,

brush guards should be visually inspected during the start-up procedure. Charles

Overton, a ThyssenKrupp field elevator technician, testified that an escalator

owner’s employees should be trained on escalator start-up and shut-down

procedures and that prior to starting an escalator, an employee should conduct a

visual inspection to make sure that nothing is protruding from the escalator or

present that might impact the safe operation of the escalator.

By contracting with ThyssenKrupp for maintenance, utilizing Concord for

passenger movement, and operating a high-traffic cruise terminal, the Port

recognized the operational risks associated with escalators. A factfinder could infer

constructive notice if a required inspection, had it been performed, would have

revealed the hazardous condition. Whether the alleged protrusion was discoverable

and whether the Port’s failure to inspect breached its duty are factual questions that

cannot be resolved on summary judgment.

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Third, Louisiana jurisprudence imposes a heightened duty of care on

escalator owners. Because a malfunctioning elevator/escalator can quickly become

a dangerous instrumentality, Louisiana law “places a high degree of care upon

elevator/escalator owners, similar to that imposed upon common carriers.” Rosell

v. ESCO, 549 So.2d 840, 848 n. 3 (La.1989); see also Broussard v. State ex rel.

Off. of State Bldgs., 12-1238, p. 14 (La. 4/5/13), 113 So.3d 175, 186. Under this

heightened standard of care, the owner of an elevator/escalator is required “to do

all that human care, vigilance and foresight can reasonably suggest under the

circumstances and, in view of the character of the mode of conveyance adopted, to

guard against accidents and injuries resulting therefrom....” Wolverton v. City

Stores Co., 363 So.2d 1321, 1325 (La. App. 4th Cir. 1978) (quoting Otis Elevator

Co. v. Seale, 334 F.2d 928, 929 (5th Cir. 1964)); see also Broussard, 12-1238, p.

15, 113 So.3d at 187.

Finally, although the Port argues that ThyssenKrupp alone bore

responsibility for inspections, the owner’s duty under La. C.C. arts. 2317.1 and

2322 is non-delegable. “The owner of a building is solely responsible for damages

caused due to vices and/or defects in the building.” Perniciaro v. Liberty Mut. Ins.

Co., 02-0889, p. 2 (La. App. 4 Cir. 5/20/02), 820 So.2d 600, 601. “This is a non-

delegable duty vis-à-vis persons who claim injury due to vices or defects in the

building.” Id. See also Nunez v. Isidore Newman High Sch., 306 So.2d 457, 459

(La. App. 4th Cir. 1975) (“Newman has the duty to employ reasonable care in

discovery of defects on its premises. This duty generally cannot be delegated to

others.”); Carrero v. Mandina’s, Inc., 19-0158, p. 11 (La. App. 4 Cir. 8/7/19), 364

So.3d 19, 26 (rejecting “Mandina’s attempts to avoid liability by shifting the blame

for the existence of the unreasonably dangerous condition to the architectural firm

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that allegedly designed the access ramp, the contractor who installed the defective

handrail, and the City Of New Orleans inspectors who approved it”). The Port may

contract for assistance but cannot shift its statutory responsibility to maintain

reasonably safe premises. The escalator was owned by the Port, located on its

property, and used by thousands of passengers. Whether the protruding wire was

part of the assembly or a foreign object, and whether inspections were properly

conducted, remain factual questions. The Port cannot absolve itself merely by

hiring a contractor.

Because the record shows genuine issues of material fact as to whether a

hazardous condition existed and whether the Port had constructive notice,

summary judgment was inappropriate. Accordingly, the judgment of the district

court granting summary judgment in favor of the Port is reversed, and the case is

remanded for further proceedings.

REVERSED

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