Jean Catherine Dragna Versus Terrytown Cafe, Inc. and Atlantic Casualty Insurance Company

JEAN CATHERINE DRAGNA NO. 22-C-239

VERSUS FIFTH CIRCUIT

TERRYTOWN CAFE, INC. AND COURT OF APPEAL
ATLANTIC CASUALTY INSURANCE
COMPANY STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 808-637, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

October 05, 2022

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

WRIT GRANTED; JUDGMENT REVERSED; SUMMARY JUDGMENT
GRANTED; CLAIMS DISMISSED WITH PREJUDICE
JGG
SMC
FHW

COUNSEL FOR PLAINTIFF/RESPONDENT,
JEAN CATHERINE DRAGNA
Robert M. Braiwick, Jr.

COUNSEL FOR DEFENDANT/RELATOR,
TERRYTOWN CAFE, INC. AND ATLANTIC CASUALTY INSURANCE
COMPANY
Paula M. Wellons
Jared A. Davidson
Sarah M. Kalis

COUNSEL FOR DEFENDANT/RESPONDENT,
F&W SOUTHERN CORPORATION
Thomas J. Eppling
Michael W. Maldonado

GRAVOIS, J.

In this trip and fall case, defendants/relators, Terrytown Café, Inc. and its

insurer, Atlantic Casualty Insurance Company, seek this Court’s supervisory

review of the trial court’s judgment which denied their motion for summary

judgment. For the reasons that follow, we grant relators’ writ application, reverse

the trial court’s judgment, grant summary judgment in favor of relators, and

dismiss all claims against relators with prejudice.

FACTS AND PROCEDURAL HISTORY

On July 27, 2020, Jean Catherine Dragna filed a petition for damages,

naming as defendants Terrytown Café, Inc. and Atlantic Casualty Insurance

Company (collectively, “defendants”) arising out of a trip and fall incident that

occurred at the Terrytown Café in Gretna, Louisiana. Ms. Dragna alleged that on

or about December 2, 2019, while she was a customer at the Terrytown Café, she

was exiting the premises when she “slipped and fell on the threshold which was

protruding above the floor level creating a hazardous condition.” Subsequently,

Ms. Dragna filed a supplemental and amending petition for damages, adding as a

defendant F &W Southern Corporation, the owner of the subject property.

In July 2021, defendants filed a motion for summary judgment, arguing

therein that Ms. Dragna will not be able to prove multiple elements of her claims

against them because she lacks factual support to establish that an unreasonably

dangerous condition caused her injuries and that defendants had notice of the

unreasonably dangerous condition. Defendants asserted that Ms. Dragna alleged in

her petition that she tripped on the threshold; however, in her deposition, she stated

that she was unsure what she actually tripped on. They argued that Ms. Dragna has

only speculated about what caused her to trip and that is not sufficient to meet her

burden of proof at trial. Additionally, defendants argued that even if Ms. Dragna

can identify an unreasonably dangerous condition that caused her fall, she cannot

22-C-239 1

and will not be able to meet her evidentiary burden as it relates to defendants’

knowledge of any unreasonably dangerous condition.

In support of their motion for summary judgment, defendants attached as an

exhibit excerpts from Ms. Dragna’s deposition. Ms. Dragna testified that she

regularly visited the Terrytown Café for a couple of years, oftentimes three to five

times a week, and was there during the early morning hours of December 2, 2019.

At some point, she exited the building, without any trouble, to go next door to get

money out of a nearby ATM and then returned to the Terrytown Café to play video

poker. Later, upon leaving the Terrytown Café to go home, sometime after 2:00

a.m., Ms. Dragna tripped and fell. Regarding the trip, she stated:

Q. And based on your Petition, your lawsuit, it seems like you say you
-- you fell while exiting the threshold at the cafe; is that correct?

A. Yes. When I was leaving, going out the door, yes.

Q. Okay. And that was when you were exiting the front door of the
cafe; right?
A. Yes.
***

Q. And so you tripped on the threshold right here (indicating)?
A. I --

Q. Or can you -- why don’t you mark for me where you tripped on
that threshold?

A. Well, it happened -- it happened extremely, extremely fast.

Q. Sure.
A. And, as I was walking, I tripped. And I tripped on the threshold. I
don’t -- I’m not 100 percent sure if that was the first thing I tripped
on. But I know I tripped on the threshold. I don’t know if it was
the rug. I was turned -- I was turning, you know, to go leave.

And the reason I’m saying that is because, when I tripped, the door
was closed.

Q. Okay.

A. So if the door was closed, I – the threshold, you know --

Q. Wouldn’t be present?

22-C-239 2

A. Yeah. I put up both of my hands like this (gesturing).

Q. Okay.

A. And I propelled forward. I mean, when I tell you I flew forward,
I’m talking flew. Hit both hands open like this on the door. And I
remember, because they were red. I stung the hell out of them, on
the door. The door opened and then I tripped on the threshold,
which propelled me. I went off of this (indicating).
Q. That’s off the sidewalk what you’re pointing to?

A. Off the little walk up here.

When questioned again about what she tripped over, Ms. Dragna stated:

Q. Okay. Now, in terms of the fall, do you know what caused you to
fall?

A. A trip. I tripped over something.

Q. Do you know what you tripped over?
A. The only thing that was there when I walked -- the only thing that
was there in front of the door was the rug and the threshold. And it
happened, like I said, very quickly. And I – I tripped before I hit
the threshold. So I’m assuming I tripped on the rug. And, like I
said, I had both hands up. You know, just instinct. I mean, I don’t
know. I didn’t -- if the door would have come the other way, I
would have been all right. But I hit the door. And I remember
hitting the threshold with my foot because it hurt. I remember
hitting it and it was, like, Oh, God.

Because I was -- I hit it so hard, I was propelled. I mean, it was
like off of the edge of that thing and past when I looked around.
And I was shocked at how far it had propelled me because of the
proximity to the newspaper machine. I mean, the newspaper
machine, it was here and I’m way -- I’m over there.
After her fall, Ms. Dragna went back inside the Terrytown Café to let an

employee know that she had fallen. The manager was not there at that time, so she

went home. When leaving the Terrytown Café that last time, she did not have any

issues crossing the threshold. She testified that usually there is a rug in front of the

door. She had never tripped over the rug/mat or the threshold before and could not

recall ever seeing anyone fall in that area. She returned the next day and spoke to

the manager. The manager did not mention if anybody had fallen before, but Ms.

Dragna said that a waitress who was there at that time said that they have had

people trip and fall “on that thing all the time.”

22-C-239 3

Defendants also attached the affidavit of Lynne Songy, owner of the

Terrytown Café since August 1986, in support of their motion for summary

judgment. Ms. Songy attested that Terrytown Café, Inc. subleases the building.

Neither she nor any agent of Terrytown Café, Inc. has ever received a complaint

regarding the “non-stick mat” in front of the door, and no one has ever reported

tripping on or over the mat, prior to this incident.1 She also stated that the mat in

front of the door is replaced weekly to ensure that it stays clean and maintains its

traction.

On January 26, 2022, F & W filed a motion for summary judgment, arguing

therein that Ms. Dragna lacks factual support to establish that a defective condition

on the property caused her fall. F & W also argued that as owner of the property

but not the operator at the time of the incident, it had no knowledge of the alleged

defect.

Ms. Dragna filed an opposition to the motion for summary judgment filed by

co-defendant, F&W. In her opposition, Ms. Dragna argued that she identified in

her deposition that the defective front door threshold caused her fall. Further, she

argued that the expert report prepared by Gurtler Bros. Consultants, Inc., dated

March 15, 2021 and attached to the opposition, supports her claim that a defective

condition on the property caused her injuries.2

In its reply, F & W challenged the expert report, arguing that it did not fit in

any of the express categories of La. C.C.P. art. 966 regarding summary judgment

evidence and should be stricken. F & W argued that the report was not attached to

1
In her affidavit, Ms. Songy does not mention the threshold specifically.
2
Specifically, the experts (Michael Gurtler and Friedrich Gurtler) found that there is an
abrupt drop of over two inches between the door threshold and the sidewalk and there is no
handicap-accessible ramp to the entrance, both of which do not conform with the requirements of
the Americans with Disabilities Act. They found that the abrupt drop outside the front door
threshold resulted in a hazardous condition that caused or contributed significantly to Ms.
Dragna’s fall.

22-C-239 4

any deposition in the case and there is no accompanying affidavit to authenticate

the report.

At a hearing on both motions for summary judgment, regarding the cause of

the trip and fall, Ms. Dragna’s counsel argued that a security tape of the incident in

question exists which has never been turned over to him, and this creates doubt and

speculation about what may or may not have happened. Counsel for defendants

stated that the only video that they possessed has already been produced, and

discovery is complete in this matter. Ms. Dragna’s counsel agreed that discovery

was complete.

In open court, the trial court found: 1) Ms. Dragna’s expert letter and report

are impermissible documents under La. C.C.P. art. 966, and therefore, they would

be stricken from the record; 2) even though Ms. Dragna’s opposition did not

specifically oppose defendants’ motion for summary judgment, it was clear from

the document itself that it was in opposition to both motions; and 3) there remained

genuine issues of material fact as to whether a dangerous condition existed and

who is responsible for the dangerous condition. The trial court further stated:

Additionally, only the evidence -- the only evidence that
defendants point to for purpose of summary judgment is the
deposition of the plaintiff. This Court finds that there has not been an
ample discovery and well it appears that all discovery is complete. So
if discovery’s complete, then I think we’re ready to move forward
with this case. …

Now [Ms. Dragna’s counsel] appears to believe that there may
be a video out there, which [defendants’ counsel] has stated today that
there’s no video, that she’s turned over everything. So if, in fact, this
is where we are it’s possible that the Court – so what I’m going to do
is deny this motion for summary judgment without prejudice for both
defendants in this case, but [Ms. Dragna’s counsel] seems to think that
there is something else out there. [Defendants’ counsel] has indicated
this is everything. Discovery is complete. So I don’t know which one
it is, if discovery’s complete or not. But what I’d like to do is
schedule a status conference for determination of cutoff dates and pick
a potential trial date and deny the motion for summary judgment
without prejudice and that way if [Ms. Dragna’s counsel] feels that
there’s more discovery out there, he’ll have a chance to complete that
discovery. …

22-C-239 5

A written judgment denying both motions for summary judgment without

prejudice and striking Ms. Dragna’s exhibit to her opposition to the motions for

summary judgment was signed on March 28, 2022.

Defendants now seek this Court’s supervisory review of the trial court’s

denial of their motion for summary judgment. Finding merit to defendants’

arguments, we gave the parties an opportunity to provide additional briefing and to

request oral argument, if desired, pursuant to La. C.C.P. art. 966(H).

LAW AND ANALYSIS

Appellate courts review the granting of a summary judgment de novo using

the same criteria governing the trial court’s consideration of whether summary

judgment is appropriate. Burns v. Sedgwick Claims Mgmt. Servs., 14-421 (La.

App. 5 Cir. 11/25/14), 165 So.3d 147, 152; Duncan v. U.S.A.A. Ins. Co., 06-363

(La. 11/29/06), 950 So.2d 544, 547. A motion for summary judgment should be

granted “if the pleadings, depositions, answers to interrogatories, and admissions,

together with the affidavits, if any, admitted for purposes of the motion for

summary judgment, show that there is no genuine issue as to material fact, and that

mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). The

summary judgment procedure is favored and shall be construed to secure the just,

speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2);

Trench v. Winn-Dixie Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14), 150

So.3d 472, 475. However, factual inferences reasonably drawn from the evidence

must be construed in favor of the party opposing the motion and all doubts must be

resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775

So.2d 1049, 1050 (per curiam).

The party moving for summary judgment bears the burden of proof. La.

C.C.P. art. 966(D)(1). However, if the movant will not bear the burden of proof at

trial, the movant’s burden on a motion for summary judgment does not require him

22-C-239 6

to negate all essential elements of the adverse party’s claim, but rather to point out

to the court that there is an absence of factual support for one or more elements

essential to the claim. Id.; Patrick v. Iberia Bank, 05-783 (La. App. 5 Cir.

3/14/06), 926 So.2d 632, 634. Thereafter, if the adverse party fails to produce

factual support sufficient to establish that she will be able to satisfy her evidentiary

burden at trial, there is no genuine issue of material fact and summary judgment

should be granted. La. C.C.P. art. 966(D)(1).

A decision as to the propriety of a grant of a motion for summary judgment

must be made with reference to the substantive law applicable to the case. Bach v.

Bd. of River Port Pilot Comm’rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355,

362.

To impose liability for an unreasonably dangerous defect, a plaintiff has the

burden to show that the thing was in the custodian’s custody or control, it had a

vice or defect that presented an unreasonable risk of harm, the defendant knew or

should have known of the unreasonable risk of harm, and the damage was caused

by the defect. La. C.C. art. 2317.1; Bryant v. Ray Brandt Dodge, Inc., 19-464 (La.

App. 5 Cir. 3/17/20), 292 So.3d 190, 197.

Upon de novo review, we find that Ms. Dragna is unable to meet to her

burden of proof to show that there was an unreasonably dangerous condition that

caused her fall. First, based on her deposition testimony, even Ms. Dragna is

unsure about what caused her fall. She alleged in her petition that she tripped over

the threshold. However, during her deposition, she testified that she tripped before

she hit the threshold, and since the only thing in front of the door was the rug/mat,

she “assumed” she tripped on the rug/mat. However, mere conclusory allegations,

improbable inferences, and unsupported speculation will not support a finding of a

genuine issue of material fact. Sears v. Home Depot, USA, Inc., 06-201 (La. App.

4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 06-2747 (La. 1/26/07), 948

22-C-239 7

So.2d 168. Even if contained in a deposition, such inferences, allegations, and

speculation are not sufficient to satisfy the opponent’s burden of proof. Id.

Further, Ms. Dragna admitted that she frequented the Terrytown Café for

years, often three to five times a week. She had never fallen before this incident

and could not recall ever seeing anyone fall before. The morning of the incident,

she crossed the same threshold both before and after the incident with no issues.

Ms. Songy, as owner of the Terrytown Café, attested that no one has ever reported

tripping on or over the rug/mat prior to this incident, and she never received a

complaint about the rug/mat. She also testified that the rug/mat is replaced weekly

to ensure that it stays clean and maintains its traction. Therefore, we find that Ms.

Dragna is unable to produce any evidence other than conclusory and speculative

allegations in her petition and testimony regarding what caused her fall, either the

rug/mat and/or the threshold. Thus, Ms. Dragna is unable to meet her burden of

proof to show that there was an unreasonably dangerous condition that caused her

fall.

Even so, Ms. Dragna also failed to present any evidence to show that

defendants knew or should have known of the condition which caused the damage,

prior to the incident. The only evidence submitted in support of the opposition for

the motion for summary judgment (the expert report) was properly stricken by the

trial court. Defendants have thus established the absence of factual support for

another essential element of Ms. Dragna’s claim.

At the hearing on the motions for summary judgment, Ms. Dragna’s counsel

argued that discovery remained outstanding, specifically video footage from the

morning of the incident, and this creates doubt and speculation about what may or

may not have happened. Defendants stated in response that the only video they

have from the morning of the incident has already been produced, and that

discovery is complete.

22-C-239 8

While La. C.C.P art. 966(A)(3) allows for “an opportunity for adequate

discovery,” the only requirement is that the parties be given a fair opportunity to

present their claim. Simoneaux v. E.I. du Pont de Nemours & Co., Inc., 483 So.2d

908, 913 (La. 1986). Unless the plaintiff shows a probable injustice, a suit should

not be delayed pending discovery when it appears at an early stage that there is no

genuine issue of fact. Id. The mere contention of an opponent that he lacks

sufficient information to defend a summary judgment motion and that he needs

additional time to conduct discovery is insufficient to defeat the motion. Turner v.

Bosley Med. Inst., Inc., 19-131 (La. App. 5 Cir. 10/16/19), 280 So.3d 326, 331

(citing Williams v. A Day to Remember Invitations, L.L.C., 06-757 (La. App. 5 Cir.

3/13/07), 956 So.2d 30, 33).

Jurisprudence has identified the following five factors for the court to

consider when addressing an adequate discovery claim: (i) whether the party was

ready to go to trial; (ii) whether the party indicated what additional discovery was

needed; (iii) whether the party took any steps to conduct additional discovery

during the period between the filing of the motion and the hearing on it; (iv)

whether the discovery issue was raised in the trial court before the entry of the

summary judgment; and (v) whether discovery has been hindered by a

circumstance beyond an opponent’s control. Roadrunner Transp. Sys. v. Brown,

17-0040 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1273-74. When discovery is

alleged to be incomplete, a trial court has the discretion either to hear the summary

judgment motion or to grant a continuance to allow further discovery. Id. at 1272.

At the hearing on the motions for summary judgment, defendants’ counsel

stated that the trial court instructed the parties to complete discovery before it

would set a hearing on the motions for summary judgment. The hearing was

eventually set, and at the hearing, all the parties, including Ms. Dragna, agreed that

discovery was complete. Further, defendants stated that the only video they have

22-C-239 9

has already been produced to plaintiff. Ms. Dragna did not raise this discovery

issue in her opposition, and there is no evidence to reflect any steps taken by Ms.

Dragna to obtain the alleged video prior to the hearing on the motions for summary

judgment. Further, Ms. Dragna did not request a continuance of the hearing on the

motion for summary judgment in order for additional discovery to take place.

Under these circumstances, we find that Ms. Dragna was given an adequate

opportunity to conduct discovery.

Thus upon de novo review, for the foregoing reasons, we find that Ms.

Dragna failed to establish that she will be able to satisfy her evidentiary burden of

proof at trial. Defendants are thus entitled to summary judgment as a matter of

law.

DECREE

For the foregoing reasons, defendants’ writ application is granted, the trial

court’s judgment which denied defendants’ motion for summary judgment is

reversed, summary judgment is granted in favor of defendants, Terrytown Café,

Inc. and Atlantic Casualty Insurance Company, and Ms. Dragna’s claims against

defendants are dismissed with prejudice.

WRIT GRANTED; JUDGMENT REVERSED;
SUMMARY JUDGMENT GRANTED;
CLAIMS DISMISSED WITH PREJUDICE

22-C-239 10

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 5, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-C-239
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
ROBERT M. BRAIWICK, JR. (RESPONDENT) JARED A. DAVIDSON (RELATOR) PAULA M. WELLONS (RELATOR)
SARAH M. KALIS (RELATOR) MICHAEL W. MALDONADO (RESPONDENT) THOMAS J. EPPLING (RESPONDENT)

MAILED
NO ATTORNEYS WERE MAILED